DoLS After the 2026 Supreme Court Ruling: What Care Services Do Now

DoLS, short for the Deprivation of Liberty Safeguards, is the process you follow when someone in your care home cannot agree to the restrictions you place on them. If those restrictions go far enough to count as taking away their freedom, you need the council's permission before you carry on.

On 2 June 2026 the Supreme Court changed how you work out whether it has gone that far. The safeguards themselves are untouched. What went is the test your staff have been using to spot a deprivation, so anyone still asking two questions and ticking two boxes is applying something that no longer exists.

What DoLS is, in one minute

Three words carry most of the weight in this process, and they turn up on every form.

You spot it, you apply, and the council makes the decision. None of that has changed.

What changed on 2 June 2026

The Supreme Court gave its judgment on 2 June 2026 in a case brought by the Attorney General for Northern Ireland, which it had heard the previous October. It ruled that the 2014 Cheshire West judgment, which nearly every care home in England has worked to for a decade, was wrong.

Since 2014 the question had been a short one: is the person under continuous supervision and control, and are they not free to leave? Two yeses meant a deprivation of liberty, and the appeal of that was obvious, because you could train a new deputy on it in five minutes.

The government's own summary of the ruling puts it bluntly. There is "no longer an acid test", by which it means there is no short checklist that settles the question. Those two questions still count for something, but they no longer give you the answer on their own.

What you weigh instead

Instead of the checklist, you look at the person in front of you and at what those restrictions do to them. Four things go into that judgement, and none of them can be answered without knowing the resident.

The four factor names are the Court's. The examples beside them are ours. Continuous supervision and freedom to leave still matter here, but as two of the things you weigh rather than as the test itself.

Two residents, one care plan, two answers

The consequence is easiest to see with two people on the same floor, both living with dementia. Their care plans say exactly the same three things: keypad on the front door, hourly checks, and a staff escort outside.

Mrs A walks to the front door most afternoons, presses the keypad, and becomes distressed when it does not open. She asks staff to let her go home several times a day, and she has not been outside without an escort in four months.

Mrs B has never gone near the front door. She sits in the lounge because she likes it there, enjoys the hourly check-ins, and goes out with her daughter twice a week.

The paperwork is identical for both women, yet the effect of those same restrictions is completely different, and it is that effect you now have to weigh. Mrs A may well be deprived of her liberty; Mrs B may not be. Under the old acid test you would probably have said yes to both, since both were supervised and neither could open the door alone. Removing that kind of shortcut is the point of the judgment.

Both women are made up. Your assessor and the council decide real cases.

What has not changed

A fair amount, so do not throw out what you already have. DoLS remains the law, the Liberty Protection Safeguards have not replaced it, and no start date has been announced. The process runs as it always did: you apply to the council, and the council decides.

The time limits are also untouched. An urgent authorisation lasts up to seven days, and can be extended by up to seven more if the council agrees. A standard authorisation can run for up to a year. Someone is still appointed to speak for the person as soon as possible after an authorisation is granted, usually a family member or friend. The paperwork calls this the relevant person's representative. Your duty to notify CQC about applications and their outcomes is unchanged too.

So are the six assessments the council carries out:

What to do now, this month

The government asks you to hurry two things along. Share the ruling, or an honest summary of it, across your organisation, and train your staff on the new definition. It also expects you to update your own policies, protocols, website and any public leaflets.

Then there is the job in your own building, and if you only get to one item this week, make it the first.

1. List the people with a current authorisation and read each one against the four factors above.

2. Flag anyone who may no longer be deprived. Where someone still has an authorisation they no longer need, the guidance says to review the case as soon as is practicable.

3. Do not cancel anything yourself. You flag it and the council decides, because cancelling on your own reading is the one move that can make things worse.

4. Change how referrals are written. A referral saying only "continuous supervision and control, not free to leave" no longer describes the test. Write what you do, for how long, what it does to that person, and how it is carried out.

5. Retrain whoever writes them, because assessors who learnt the two questions will need the new framework.

6. Do the urgent edit now and save the full rewrite. Take the acid test out of your policy this month. The Department of Health and Social Care has said it will publish further interim guidance, and that revised materials will be updated by December 2026. A top-to-bottom rewrite can wait until then.

What your mental capacity and DoLS policy must say

Most care policies on this subject still quote the acid test, and a policy that does is teaching staff something that is no longer true. Yours needs to:

1. Say where things stand, which is that DoLS still applies, the acid test does not, and you now weigh the four factors.

2. List those four factors with one example each from your own home.

3. Name who decides a referral is needed, and who reviews the authorisations you already hold.

4. Keep the process steps: urgent authorisation, standard authorisation, the six assessments, the representative.

5. Say what happens while you wait, including the seven days and the single extension.

6. Point to the CQC notification that follows an application and its outcome.

7. Set a review date tied to the new guidance, so somebody looks again when the Department publishes it.

Our guide to CQC statutory notifications covers the notification side, and care home policies and procedures covers the structure your policies need.

Why this one matters more than most

A policy quoting an overruled test is worse than merely out of date, because it is evidence that nobody noticed a change in the law for months. That reads as a governance problem rather than a paperwork one, and governance sits squarely under Well-led. If you update one policy this quarter, make it this one.

Where HeroDocs fits

HeroDocs watches the regulators and tells you which of your policies a change affects, so a ruling like this one does not sit unread for months. Your mental capacity policy keeps its owner, version and review date in one place. You can send the updated version to your team for sign-off with a timestamped record of who has read it.

Sources

• Department of Health and Social Care, UK Supreme Court 2026 judgment on what constitutes a deprivation of liberty.

• SCIE, Deprivation of Liberty Safeguards at a glance, which notes the June 2026 ruling and that its material is being updated.

• SCIE, What are Liberty Protection Safeguards?.

• Mental Capacity Act 2005, Schedule A1.

Last checked: 29 September 2026.

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