Mental Capacity Assessments
Cheshire West is gone. What the Supreme Court's June judgment means for your service.
On 2 June 2026, the Supreme Court held that *Cheshire West* was wrongly decided.
If you work in adult social care, take a moment with that. The acid test that has governed deprivation of liberty for twelve years — continuous supervision and control, and not free to leave — is no longer the test. The changes apply with immediate effect and extend across the UK.
DHSC published interim guidance on 15 June. NHS England is publishing an updated DoLS e-learning module by 30 July. Further interim guidance with case studies is coming.
This is the biggest change to mental capacity practice in over a decade, and a lot of providers still have policies on the shelf that describe law which no longer applies.
What the court decided
The case was a reference by the Attorney General for Northern Ireland. The Supreme Court heard it in October 2025 and handed down judgment on 2 June 2026.
Four things came out of it.
The acid test is gone. There is no longer a single test for the objective element of deprivation of liberty. Instead, the assessment is multifactorial.
No single factor decides it. The starting point is the specific situation of the individual person, taking into account the type, duration, effects and manner of implementation of the restrictions on them.
Lacking capacity does not mean you cannot consent. This is the part that overturns the most settled assumption in practice. *Cheshire West* proceeded on the basis that if someone lacks capacity under the Mental Capacity Act 2005, they cannot give valid consent to their confinement. The Supreme Court said that was wrong. A person's expression of their wishes and feelings carries significant weight. Someone can give valid consent if they are conscious of their environment, have a basic level of understanding, and are capable of expressing a view that they accept or are happy with the situation.
Objection matters. *Cheshire West* held that a person's lack of objection was never legally relevant. The Supreme Court disagreed. Whether someone objects goes directly to whether they are objectively confined.
There is an important qualifier attached to the consent point: where there is serious doubt, no conclusion of valid consent can be drawn.
What the multifactorial assessment considers
DHSC's guidance sets out the factors:
the type of restrictions — locked doors, physical control, supervision, sedating medication, social isolation
the duration of those restrictions
the effects of the restrictions on the person
the manner of implementation
whether the person objects
how far removed the situation is from detention in a prison cell
the relative normality of the arrangements — greater restrictions would be needed at home for a deprivation to arise
the purpose of the arrangement, for example whether it is for care and protection rather than punishment or coercion
There is also a point that matters a great deal in learning disability and physical disability services: for there to be a deprivation of liberty, there must be an element of restriction imposed on a person against their will. Where someone's liberty is constrained by their own illness, condition or impairment — where physical disability prevents them leaving and they are unable to form any desire to leave — that will likely not be a deprivation of liberty.
Compliance is not consent
This is the line I would put on the wall of every staff room.
DHSC's guidance is explicit: compliance does not automatically mean someone is consenting. The question is not "are they compliant" but "how do we know what this person actually understands and wants."
That means looking at what someone communicates verbally, if they can, and through their actions and behaviour. Do they seem happy or unhappy? Are they trying to leave? Are they distressed? Can they express a view? It means considering previously expressed wishes and previously observed behaviour.
It also means being alert to the things that stop someone expressing themselves honestly: sedating medication, fear of consequences, perceived pressure, or a feeling that they do not want to be a burden. That last one is quietly devastating and I have seen it more times than I can count.
The guidance is clear that people should be given all support necessary to communicate their wishes and feelings, that assessment requires reviewing care and medical notes and speaking to family and staff, and that it may require multiple visits.
What counts as objection
DHSC lists examples:
attempts to leave the setting, including supported living
refusing care or treatment, or physically rejecting care such as pushing staff away
physical restraint or one-to-one care used to manage behaviour
covert medication where the person objects to medication
sedating medication to manage behaviour, where it affects the person's ability to object
Any objection points towards a deprivation of liberty. Where someone is objecting, valid consent is unlikely to be present.
What you should do now
**Do not start cancelling authorisations.** DHSC is clear that where a person is no longer deprived of their liberty but has a DoLS authorisation in place, the case should be reviewed as soon as practicable — but leaving the authorisation in place meanwhile does not make the deprivation unlawful. Reviews are for local authorities as supervisory bodies to prioritise. That is not your call to make unilaterally.
**Do refer when in doubt.** The guidance is unambiguous. Where you are unsure whether someone is objecting, or where someone fluctuates between appearing content and appearing to object, refer to the local authority for consideration of a DoLS authorisation, or to the Court of Protection. Where restrictions are significant, or where Article 5 may be engaged, keep using the existing processes.
**Do share the ruling through your organisation and upskill your staff.** DHSC specifically asks registered providers and managers to expedite this. Your care workers are the people who see whether someone objects. If they are still working to the acid test, your assessments will be wrong.
**Do review your documents.** Policies, protocols, assessment templates, websites, public-facing leaflets. Anything that states the acid test as current law is now inaccurate. DHSC asks for an initial review and update of organisation-specific operational products.
**Do keep your other duties in view.** The judgment does not remove the need to comply with Article 5 where it is engaged. DoLS still applies in hospitals and care homes where there is reason to believe someone is deprived of their liberty. The court process still applies elsewhere. And your duties under the Mental Capacity Act 2005, the Care Act 2014, continuing healthcare and the common law duty of care are all untouched.
Proportionate, not panicked
DHSC's own framing is worth quoting in spirit: providers and local authorities should use their professional experience and take a proportionate and considered approach before further guidance is published.
In the long term this judgment is likely to reduce the number of deprivation of liberty authorisations significantly. In the short term, a more cautious approach is expected, with borderline cases referred for review.
Note also that the 2008 DoLS code of practice was republished on 2 June 2026. Chapter 2 remains a useful starting point on the objective element, while not fully reflecting the 2026 decision.
Where this leaves us
I have some sympathy for the discomfort this causes. *Cheshire West* was blunt but it was predictable, and predictability has value when you are trying to run a service.
But the judgment restores something that was lost. Under the acid test, a person who was content, settled, and clearly happy where they lived was legally in the same position as someone banging on a locked door. That never sat right with anyone who does this work, and it generated an enormous volume of authorisations that protected nobody in particular.
The new approach asks harder questions and asks you to actually know the person. That is more work. It is also better practice.
If you need help reviewing your policies and briefing your team on the new position, get in touch — this is exactly the kind of thing worth getting right first time.
Tiffany Nelson supports adult social care providers in England with CQC registration and inspection preparation. [tiffanynelsonconsulting.co.uk](https://www.tiffanynelsonconsulting.co.uk) | [Connect with me on LinkedIn](https://www.linkedin.com/in/tiffany-nelson-177784281)*
**Sources:** *A Reference by the Attorney General for Northern Ireland* [2026] UKSC, judgment handed down 2 June 2026; DHSC, *UK Supreme Court 2026 judgment on what constitutes a deprivation of liberty*, published 15 June 2026; *P v Cheshire West and Chester Council* [2014] UKSC 19; Mental Capacity Act 2005; Care Act 2014; DoLS code of practice (republished 2 June 2026).