DHSC issues interim guidance to help sector implement landmark deprivation of liberty ruling

The Department of Health and Social Care (DHSC) has published interim guidance to support health and social care organisations in implementing the Supreme Court's landmark June 2026 judgment on deprivation of liberty.

The update, published on 15 June, provides the first official steer to practitioners, providers and local authorities since the Supreme Court overturned the long-established Cheshire West "acid test" and introduced a new multifactorial approach to determining whether a person is deprived of their liberty.

The guidance confirms that the changes apply immediately across the UK and are expected to have significant implications for deprivation of liberty practice in hospitals, care homes and community settings.

Under the Supreme Court ruling, assessments must now consider a range of factors, including the type, duration, effects and manner of restrictions imposed on an individual, rather than relying on the Cheshire West test of whether a person is under continuous supervision and control and not free to leave.

The judgment also established that a person who lacks legal capacity to consent to their care and residence under the Mental Capacity Act 2005 may nevertheless be capable of giving valid consent to their living arrangements if they have a basic understanding of their situation and can express that they are content with it.

In its guidance, DHSC acknowledges the scale of the change and urges organisations to begin reviewing their policies, procedures and operational documents to reflect the new legal framework.

Care providers, hospital trusts and local authorities are advised to share the ruling across their organisations, upskill staff on the revised definition of deprivation of liberty and review internal materials, including policies, protocols, websites and public-facing information.

The department also signals that the judgment is likely to lead to a substantial reduction in the number of deprivation of liberty authorisations over time.

"Following the judgment, it is likely that there will be many people currently subject to DoLS authorisations who no longer fall in scope of DoLS," the guidance states.

However, DHSC warns against a rush to remove safeguards, stressing that organisations should adopt a "proportionate and considered approach" while further guidance is developed.

Local authorities are being advised to prioritise reviews of existing authorisations, cases approaching renewal and new referrals, while ensuring that safeguards such as independent advocacy and relevant person's representatives remain in place where required.

The guidance also provides greater clarity on how practitioners should assess objection and consent under the new framework.

It states that a person's wishes and feelings now carry significant weight when determining whether a deprivation of liberty exists. Practitioners are encouraged to look beyond apparent compliance and consider what individuals understand and want, drawing on verbal communication, behaviour, previous wishes and observations from family members and staff.

The department emphasises that practitioners should remain alert to factors that may affect a person's ability to express their wishes, including sedating medication, fear of consequences, perceived pressure or concerns about being a burden to others.

Where there is uncertainty about whether a person is objecting to their arrangements, or where wishes and feelings fluctuate, providers are advised to continue making referrals for DoLS authorisations or seek direction from the Court of Protection.

DHSC also confirmed that additional interim guidance is being developed in partnership with stakeholders and charities and will include practical case studies to support implementation of the judgment in frontline practice.

Meanwhile, NHS England is expected to publish an updated Deprivation of Liberty Safeguards e-learning module by 30 July 2026.

The guidance reiterates that despite the change in legal definition, organisations must continue to meet their obligations under the Mental Capacity Act 2005, the Care Act 2014, continuing healthcare frameworks and common law duties of care.

DHSC said its response to the ruling would continue to be centred on the principles of the Mental Capacity Act, adding that plans for implementation should reflect "the paramount importance of the wellbeing of people who have health and care needs".