The Supreme Court has overturned Cheshire West. Here is what care providers need to do now.

Written By Tiffany Nelson

On 2 June 2026 the Supreme Court handed down a judgment that changes how deprivation of liberty is assessed in care settings. It held that its own 2014 decision in Cheshire West was wrong.

If you run a care home, a supported living service or a hospital, this affects you.

Let me be straight with you about what we know, what we don't, and what I would do this week.

What the Court decided

For twelve years, the test for deprivation of liberty in practice was the "acid test" from Cheshire West. Is the person under continuous supervision and control, and are they not free to leave? If yes to both, it was a deprivation of liberty. That applied even if the person was content, and even if the setting was a loving, ordinary home.

The Supreme Court has now said that test was too crude and too rigid. The question is now a multifactorial one. Courts and providers must look at the person's concrete situation, including the type, duration, effects and manner of implementation of the care arrangements.

The second change matters just as much. The Court accepted that a person can lack capacity to decide about their care or residence and still give a valid consent to their arrangements. GOV.UK's summary says this is possible where the person is conscious of their environment, has a basic level of understanding and is capable of expressing a view.

The judgment took effect immediately. There is no transition period.

What this does not mean

I want to be careful here, because I can already see the sector drawing the wrong conclusion.

It does not mean deprivation of liberty has gone away. It means the assessment is harder to do well and easier to do badly. A person who is under heavy restriction, who objects, or who cannot express a view at all is in a very different position from a person who is settled and content. The old test treated them the same. The new one should not.

It does not mean the Mental Capacity Act no longer applies. Capacity assessments, best interests decisions and the principle of least restriction all still apply. The Court's reasoning, as commentators describe it, is that other protections remain in place.

It also does not tell us what happens to the Liberty Protection Safeguards. At the time of writing, the commentary I have read says the Government's review of LPS is still pending. I would not assume anything about replacement legislation until it is published.

What it means for your CQC registration and inspection

I have not found CQC guidance that responds to this judgment specifically.

So here is what I would expect, and I am labelling it as my view.

Two regulations sit directly in this space. Regulation 11 covers need for consent. Regulation 13 covers safeguarding from abuse and improper treatment, and it includes restrictions on control, restraint and depriving people of their liberty without lawful authority.

In my experience, inspectors do not test whether you know the case law. They test whether your records show a lawful, proportionate and individual decision for each person. That has not changed. What has changed is the legal basis you are recording against.

If your policies still say "continuous supervision and control and not free to leave means apply for a DoLS authorisation", they are now out of date. An inspector reading that policy after 2 June has fair grounds to ask whether anyone has looked at it since.

What I would do this week

  1. Tell your staff. Share the judgment or a plain summary. Managers, seniors and anyone who writes care plans should know it has changed.

  2. Pull your policies. Find your deprivation of liberty, consent, capacity and restrictive practice policies. Note every reference to the acid test or to Cheshire West. Mark them for review. Do not rewrite them in a panic. A dated note saying "under review following the Supreme Court judgment of 2 June 2026" is better than a rushed policy that gets the law wrong.

  3. List who is affected. Start with everyone who currently has a DoLS authorisation or a pending application. Then list the people you have been treating as deprived of liberty without a formal authorisation.

  4. Do not stop applying on your own authority. Do not withdraw applications or decide that an authorisation no longer applies just because the test has changed. The government's guidance, as I read it, says to refer borderline cases to the local authority or the court. The supervisory body or the court makes that call, not the provider.

  5. Start recording the person's expressed views. The new test makes this central. How does this person show you whether they are content? What did they say or do? Who has noticed it, and when? A line in a care plan saying "seems happy" will not carry weight. A dated, specific record of what the person communicated will.

  6. Review who is at risk of falling through the gap. Commentary from the British Geriatrics Society warns that some older people, particularly those unable to object, may lose safeguards. If your service supports people who cannot express a view, the absence of an objection is not consent. I would treat those people as the highest priority for review.

The honest version

Many providers will be relieved. DoLS applications have been a heavy burden, and the backlog has been a problem for years. Some of that relief is justified.

But I would be cautious about treating this as a reduction in work. The old test was blunt, but it was easy to apply. The new one asks for judgment and evidence on every person, and it is the provider's records that will show whether that judgment was sound. For services supporting people with learning disabilities, dementia or acquired brain injury, I would expect the borderline cases to be numerous.

If you are unsure how your current arrangements, records or policies stand up after this ruling, I am happy to look at them with you. You can get in touch here.

Tiffany Nelson is a CQC registration and compliance consultant with 15 years' experience in adult social care, including operational management, quality assurance and work on both sides of a CQC inspection.

Sources

Tiffany Nelson https://www.tiffanynelsonconsulting.co.uk/
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