Since 2014, providers have relied on the well-known Cheshire West “acid test”, which, in summary, considered a person deprived of their liberty if they were under continuous supervision and control, were not free to leave and lacked the capacity to consent to their care or living arrangements. This approach led to a substantial increase in Deprivation of Liberty Safeguards (DoLS) applications across health and social care settings.

The change explored in this article is to the approach taken to determine whether or not a deprivation of liberty may be occurring which would necessitate an application for a DoLS. The statutory DoLS framework remains unchanged, although the circumstances in which providers may need to make an application will now require assessment under the AGNI approach.

The Supreme Court’s 2 June 2026 judgment in Attorney General for Northern Ireland v Reference under Schedule 10 to the Northern Ireland Act 1998 (often referred to as ‘AGNI’) marks a major shift away from the approach established by Cheshire West and has important implications for care homes, supported living services, social care providers, local authorities and lawyers working with the sector.

The Supreme Court has now confirmed that the acid test should no longer be the sole determining factor. Instead, decision-makers must undertake a holistic, case-specific assessment of the individual’s specific situation. The focus is no longer on a simple checklist of restrictions but on the overall impact of those restrictions on the person’s life.

Confinement first, consent second: the new approach to assessing deprivation of liberty

Confinement and consent are now separate questions. The AGNI judgment makes clear that practitioners should not move straight to considering whether a person lacks capacity and is subject to restrictions, as they did under Cheshire West.

The first question is whether, viewed objectively and taking account of all the circumstances, the care arrangements amount to confinement for the purposes of Article 5 of the European Convention on Human Rights (ECHR). This requires a multifactorial assessment of the individual’s specific situation, including the nature, duration, effects and implementation of any restrictions.

If the arrangements amount to confinement, the second question is whether the person is validly consenting to those arrangements. Importantly, the Supreme Court rejected the assumption in Cheshire West that a person who lacks capacity under the Mental Capacity Act 2005 can never provide valid consent for Article 5 purposes. The person’s wishes, feelings, understanding of the arrangements and acceptance of them are therefore potentially significant considerations. Where there is valid consent, Article 5 is not engaged and there is no deprivation of liberty requiring authorisation.

In short, a person who lacks capacity to consent to their confinement may nonetheless be able to give ‘valid consent’.

Providers should use a holistic assessment

When considering the two questions above, providers should undertake a holistic assessment. For the first question (the objective test), this involves considering a range of factors rather than relying on a single defining test. These include the nature and intensity of restrictions, the duration of any supervision, the purpose of the care arrangements, the person’s ability to maintain social relationships, their level of engagement in daily activities, and whether the arrangements are consistent with their wishes and feelings. The assessment should also consider whether limitations arise from active measures imposed by care providers or from the individual’s underlying health condition.

Importantly, when considering the second question (the subjective test), the judgment confirms that the individual’s wishes, feelings and expressions of consent are relevant factors which must be considered as part of the overall assessment.

The judgment highlights the significance of wishes, feelings, valid consent to confinement and objection when considering whether a deprivation of liberty exists. Of key importance in the judgment was the fact that the Supreme Court recognised that a person may be capable of giving valid consent for Article 5 purposes, even where they lack capacity under the Mental Capacity Act 2005 to make decisions about their care arrangements.

Care providers should actively seek evidence of the person’s views, wishes and feelings. Signs of contentment, co-operation and a wish to remain in the placement may be relevant, while verbal objections, attempts to leave, distress, resistance to care or other behaviours indicating dissatisfaction may point towards a deprivation of liberty. Compliance alone should not be treated as ‘valid consent’, but it is now a relevant consideration within the overall assessment.

What does the AGNI judgment mean for care providers?

For providers, this means moving away from a tick-box exercise and adopting a more nuanced, evidence-based approach. Good practice will involve multidisciplinary decision-making, regular reviews, meaningful engagement with residents and their families, and comprehensive recording of the rationale behind decisions. It is as crucial that these records exist when the decision to apply for a DoLS is made, equally as to when the decision is made that an application is not required. Care records should demonstrate not only what restrictions are in place, but why they are necessary, proportionate and tailored to the individual’s specific situation. Clear documentation will be vital in demonstrating a lawful basis and compliance with local authorities, the Court of Protection and the Care Quality Commission (CQC).

Do existing Deprivation of Liberty Safeguards (DoLS) authorisations still apply?

DoLS authorisations remain essential where a deprivation of liberty exists. However, the AGNI judgment is likely to mean fewer situations will meet the legal threshold that necessitate an application for a DoLS, and providers should note that the practical impact of the decision is still emerging. Providers should continue to make DoLS referrals in uncertain or borderline cases and work with local authorities to review existing authorisations where appropriate.

The Department of Health and Social Care (DHSC) will publish additional interim guidance to assist with the implications of this ruling, and we understand this will include practical case studies to help people understand how they should apply the judgment to their work.

Practical steps providers need to take

The practical priorities for care providers are clear: update policies and procedures, train staff on the new multifactorial approach, review residents subject to restrictions and strengthen documentation practices. Those who adapt early will be better placed to demonstrate compliance.

As always, where there is uncertainty, an application for a DoLS should be made and where required specialist legal advice should be sought. The law may have moved beyond Cheshire West, but careful assessment, sound professional judgment and evidence-based decision-making, accurate record keeping and good governance are more important than ever.

While further guidance is expected, providers should begin reviewing their current processes now to ensure they are aligned with the principles set out in AGNI.

Key takeaways

• The Supreme Court has moved away from relying solely on the Cheshire West acid test.
• Confinement and consent are now separate legal questions.
• A person may be capable of giving valid consent to confinement for Article 5 purposes even if they lack capacity under the Mental Capacity Act 2005.
• The definition of ‘valid consent’ does not apply for the purposes of determining whether a person is consenting to their care and treatment.
• DoLS applications remain necessary where a deprivation of liberty exists.
• Care providers should review policies, staff training and documentation practices in light of the judgment.

For tailored advice on how these changes may affect your setting, please contact our Health & Social Care team. Isabel De La Haye can be reached at 01202 786191 or Isabel.DeLaHaye@LA-law.com, and Alice Thursfield on 01202 786353 or Alice.Thursfield@LA-Law.com.