Deprived of liberty in a care home or hospital

On 2 June 2026, the Supreme Court changed how a deprivation of liberty is defined (2026) for an individual who lacks capacity to consent to their care and residence where there is or may be a deprivation of liberty.

• Instead of relying on the single ‘acid test’, an assessment of whether someone is deprived of their liberty must now consider multiple factors - that is, it is multifactorial
• The starting point in assessing whether someone is deprived of liberty is to look at the specific situation of the individual and take into account the type, duration, effects and manner of implementation of restrictions on the person - crucially, no single factor is determinative.
• The Cheshire West 2014 judgment wrongly assumed that if someone lacks legal capacity under the MCA 2005, they cannot give valid consent to the arrangements. The 2026 judgment clarifies that a person’s expression of their wishes and feelings carries significant weight. A person 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 and/or are happy with the situation. However, if there is serious doubt, no conclusion of valid consent can be drawn.
• The effect of the restrictions on the person may differ based on whether or not the person is content with their arrangements - Cheshire West 2014 was wrong to conclude that a person’s lack of objection is never legally relevant to the question of objective confinement.

Also consider: For there to be a deprivation of liberty, there must be an element of restriction being imposed on a person against their will. This means that it is unlikely to be a deprivation of liberty if a person’s liberty is constrained by their own illness, condition or impairment. For example, if someone’s physical disabilities prevent them from leaving a particular setting and they are unable to form any desire to leave, this will likely not be considered a deprivation of liberty.

For a full explanation of the legal changes and background, read the Supreme Court 2026 judgment and guidance (opens in new tab).

Assessing and reviewing Deprivation of Liberty Safeguards (DoLS)

We are responsible for assessing if someone's liberty is being deprived in a care home or hospital for Walsall residents. 

You can request assessments or reviews of DoLS if you are:

• a healthcare professional in hospital
• a member of care home staff
• a representative for the person (relevant person)

If you think that your liberty is being deprived you can speak to your health care provider, or care home staff, to discuss your concerns, or you can contact us.