When does care become a deprivation of liberty? DoLS after the Supreme Court’s 2026 ruling 

Moving somebody into a care home can mean accepting restrictions that would feel unusual in ordinary life. External doors may be locked, a resident may need staff with them whenever they leave the building, medication may be managed for them, and staff may step in where there is a risk of harm. These arrangements are often introduced for entirely understandable reasons, by families and care providers who are simply trying to keep somebody safe. The law nevertheless recognises that restrictions can reach a point where they amount to a deprivation of a person’s liberty, and when that happens, additional legal safeguards are required. 

A Supreme Court ruling in June 2026 changed the way that threshold is assessed. The case, A Reference by the Attorney General for Northern Ireland [2026] UKSC 16, is commonly shortened by lawyers to AGNI, and it replaced the legal approach that had been used for more than a decade. It did not replace the Deprivation of Liberty Safeguards, usually known as DoLS. Instead, it changed the test used to decide whether somebody is deprived of their liberty in the first place. Put simply, the AGNI ruling sets the test for deciding whether the legal threshold has been crossed, and DoLS provide the framework for authorising and safeguarding a deprivation of liberty in a care home or hospital once it has. 

Recent reporting about the care of Sir Ranulph Fiennes has brought these questions into the headlines and may leave families wondering whether the change affects someone they love. 

What deprivation of liberty really means 

Everyone has a basic legal right to liberty, which in simple terms means the freedom to come and go and to live your life without being confined. That right comes from Article 5 of the European Convention on Human Rights, and it is built into the Mental Capacity Act 2005, the law in England and Wales that protects people who cannot make some decisions for themselves. It does not mean that someone who needs care can never be restricted. A person living with dementia, a brain injury or another condition may well need close supervision or limits on what they can safely do, and sometimes those limits go far enough that, in the eyes of the law, the person is deprived of their liberty. 

This is a legal label, not a verdict on the quality of care. A person may be receiving compassionate, appropriate care and still be deprived of their liberty in the legal sense, and an application for authorisation does not mean anyone has done anything wrong. What the law requires is that, where a person cannot agree to such restrictions themselves, there is a proper legal basis for them, someone independent checks that they are justified, and the person’s own wishes are not overlooked. That is what the Deprivation of Liberty Safeguards are for. 

How DoLS work 

DoLS apply in care homes and hospitals, to people who lack capacity to decide on their care and residence and whose arrangements amount to a deprivation of liberty. In a care home, the provider is described in the legislation as the “managing authority”. Where it believes a resident may be deprived of their liberty, it must apply to the relevant local authority, which acts as the “supervisory body”. The local authority then arranges a series of assessments, including of the person’s capacity and of whether the restrictions are necessary, proportionate and in their best interests, before deciding whether to grant an authorisation. If restrictions need to begin immediately, the care home can grant an urgent authorisation for up to seven days while this happens, and in exceptional circumstances the local authority can extend that by up to a further seven days. 

None of this is the family’s responsibility to organise, which can come as a relief to relatives already carrying a great deal. That includes a relative who holds a health and welfare Lasting Power of Attorney. An attorney may know the person far better than any professional and, where the LPA allows, can make decisions about their care or where they live. What an attorney cannot do is authorise a deprivation of liberty. That is not a reflection on the attorney. The law simply says that when someone’s freedom is being restricted, somebody independent should check it is right, however trusted and well-meaning the people around them are. 

Authorisation is not the end of the process either. The person must have a Relevant Person’s Representative, usually called an RPR, who may be a relative, a friend or an independent representative. The RPR’s role is to stand firmly in the person’s corner, keeping in touch with them, helping them understand the authorisation and, if they object or their circumstances change, asking for a review or bringing a challenge in the Court of Protection. An authorisation also belongs to a particular placement, so if the person moves to a different care home, the position must be considered afresh. 

DoLS only cover care homes and hospitals. Where somebody lives in supported living, their own home or another community setting, a deprivation of liberty will generally need to be authorised by the Court of Protection instead. 

How the Supreme Court changed the test 

All of this depends on first deciding whether the person is deprived of their liberty at all, and that is where the law changed in June 2026. Before then, the test came from the Supreme Court’s 2014 decision in P v Cheshire West and Chester Council_UKSC_19). Its “acid test” treated a person as deprived of their liberty if they were under continuous supervision and control and not free to leave, and very large numbers of care arrangements fell within the DoLS framework as a result. 

In the AGNI ruling on 2^nd June 2026, the Supreme Court decided that those two factors should no longer settle the question on their own. They remain relevant, but the answer now depends on the person’s circumstances as a whole. That includes the nature and length of the restrictions, how they are put in place and the effect they have, as well as the person’s contact with family and the wider community, any use of restraint or medication and how ordinary their daily life feels. Guidance from the Department of Health and Social Care confirms that the change took effect immediately and applies across the UK. 

The court also gave real weight to how the person feels about their own situation. Someone may not have the capacity to make the full legal decision about their care, yet still know where they are and be able to show, through what they say or how they behave, whether they are content there or want to leave. Where a person is genuinely happy with their arrangements, that can count towards the conclusion that they are not deprived of their liberty. Simply going along with things, or not complaining, is not enough, and where there is real doubt about what the person wants, agreement should not be assumed. 

What the change means in practice 

The effect will vary from one person to the next. Take a resident with dementia whose care home keeps its external doors locked and whose staff go with them whenever they go outside. Under the old test, those facts would have pointed strongly towards a deprivation of liberty, but now they are only part of the picture. A resident who repeatedly tries to leave, asks to go home and is physically stopped may be in a very different position from one who understands their surroundings, consistently says they are happy to stay and enjoys a fairly ordinary daily life despite needing a lot of support. Neither situation produces an automatic answer, and each has to be looked at as a whole. 

Overall, fewer people are likely to need a DoLS authorisation. The Department of Health and Social Care has said that, in the long term, the change is likely to reduce significantly the number of deprivation of liberty authorisations. Some people who already have an authorisation may no longer be deprived of their liberty under the new test, and DHSC guidance says their cases should be reviewed as soon as is practicable. Leaving an authorisation in place in the meantime does not mean the person is being unlawfully deprived of their liberty. Families who are unsure can ask the care provider or local authority whether their relative’s circumstances have been reviewed in light of the ruling. 

When to look more closely 

A finding that somebody is not deprived of their liberty does not leave them without protection, and it does not give anybody unrestricted control over their life. The Mental Capacity Act still requires capacity to be considered decision by decision, the person to be helped to decide for themselves wherever possible, and any decision made for them to be in their best interests, with their wishes, feelings, beliefs and values firmly in view. Local authority safeguarding duties, independent advocacy, complaints procedures, the right to respect for private and family life under Article 8 of the European Convention on Human Rights and the Court of Protection all remain available. 

That matters, because families may have legitimate questions whether or not DoLS apply. A person who repeatedly asks or tries to leave, seems distressed by restrictions, is physically prevented from leaving, has significant limits on contact with others, is subject to restraint or medication that affects their ability to object, or is moved between placements may need a closer look, as may any disagreement about whether they genuinely accept their arrangements. None of this automatically means something is wrong. Raising a concern is not an accusation, but a way of checking that the person’s circumstances have been properly assessed, that any restrictions remain necessary and that the right legal process is being followed. 

How specialist advice can help 

Questions about care and liberty can involve several different areas of law at once, so disagreements can become complicated very quickly. Specialist advice can help where there is uncertainty about whether care arrangements amount to a deprivation of liberty, whether a DoLS authorisation is needed or should continue, or whether the Court of Protection needs to become involved. It may also help where the person objects to their placement or care, where family members are worried about restrictions on contact, or where there is disagreement about capacity or best interests. Legal aid may be available in some circumstances, depending on the nature of the case and the criteria applied by the Legal Aid Agency. 

The legal test has changed, but the purpose of the safeguards has not. They exist so that people who need care are kept safe without becoming bystanders in decisions about their own lives. 

Coodes’ Court of Protection and mental health team can advise on capacity, deprivation of liberty and Court of Protection matters, including challenges to DoLS authorisations. Should you require support in any of these areas, please do not hesitate to contact us for a confidential, impartial consultation. 

About the Author: Rebecca Moore is an Associate in the Mental Health team at Coodes Solicitors. Having started her career in the Family team, she now represents clients detained under the Mental Health Act 1983, both at Hospital Managers’ reviews and before the First-tier Mental Health Tribunal. Rebecca holds the Law Society’s Mental Health Accreditation. She also regularly supports clients with health and welfare matters in the Court of Protection, including challenges to authorisations granted under the Deprivation of Liberty Safeguards. 

Get in touch: 01872 246 224 rebecca.moore@coodes.co.uk