Update note from ADASS following the Supreme Court decision on deprivation of liberty on 2 June, 2026

ADASS previously advised Councils to take a cautious approach to developing operational materials and approaches to reviewing and processing cases in the immediate wake of the Supreme Court decision. This note builds on that, following guidance issued by DHSC on 15 June, 2026.   

The judgement in the Supreme Court, known as AGNI, became the test for a deprivation of liberty immediately after it was handed down. There is no period of grace. Therefore, the acid test must no longer be followed. However, it is important that referrals for Deprivation of Liberty Safeguards (DoLS) continue to be responded to as councils transition into a new stage and as a national, strategic response to reviewing existing cases and those cases waiting is developed.  

ADASS through the national DoLS Leads network is actively working on the development of a priority/review tool. We would therefore continue to suggest a period of adjustment as advised by DHSC and that councils begin to think about how other areas of work (beyond dealing with current DoLS referrals) can be prioritised going forward. ADASS will support a coordinated approach and will work with the national DoLS Leads group in taking this forward.   

 We support the guidance issued by DHSC UK Supreme Court 2026 judgment on what constitutes a deprivation of liberty – GOV.UK and draw from it several points to be followed by all councils:  

1. Organisational alignment: Councils will need to begin aligning their practice with this new legal position. Further government guidance will be published at a later date. Practitioners should not be following the acid test of Cheshire West but the multifactorial test of AGNI.  

2. Sharing the message: Councils should share the ruling throughout their organisations and begin to consider how to upskill their workforce on the definition of deprivation of liberty in line with this change in the law.  

3. Reviewing materials: Councils will need to carry out an initial review of all materials relating to deprivation of liberty, including but not limited to policies, protocols, websites and public-facing leaflets. Initially it might be wise to add a note to public facing websites to alert people to the need for review.  

4. A period of adjustment: DHSC recognise that there will be a period of adjustment before a full understanding of the impact of AGNI can be known. Councils should begin to think about how they will prioritise reviews, assessments of cases coming to the end of their authorisation as well as new referrals.  

5. Clarity of message: The judgment is clear that the starting point is a multifactorial assessment of the proposed arrangements - in other words, starting with whether the care and support needed meets the revised criteria for a deprivation of liberty before considering whether a person could be said to validly consent, through an expression of their wishes and feelings, to those arrangements. Considering factors in this order will help rule out many cases before having to consider (if the care & support meets the deprivation of liberty threshold) the more complex issue of a person’s ability to ‘agree’ to that care.  

6. Beginning an assessment: 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.  

7. A change of emphasis: We recognise that AGNI brings a different perspective from the gilded cage scenario of Cheshire West. For there to be a deprivation of liberty now, there must be an element of restriction 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.   

8. Objection is a relevant factor: Unlike Cheshire West objection is now relevant. Any objection would point towards a deprivation of liberty. Objection could take a number of forms and could include – attempts to leave the setting, refusing or rejecting care or treatment, physical restraint or one-to-one care to manage behaviour and the use of covert or sedating medication to manage behaviour.  

9. Valid consent: A person may be able to give valid consent in relation to a deprivation of liberty even if they lack legal capacity to consent to their care and residence under the MCA 2005. Compliance does not automatically mean someone is consenting. Guidance is developing in this area, and ADASS will provide updates as necessary. The statement by DHSC gives useful information as a starting point.  

10. Referrals using the new test: DHSC guidance to providers at this stage recommends they make referrals where they are in doubt about whether someone is objecting to their confinement or where there is any doubt as to whether arrangements constitute a deprivation of liberty. This includes where there are any doubts about valid consent.  

11. Development of resources: in collaboration with the DHSC, PCH and DoLS leads, standard resources (forms, for example) are being developed and will be shared in due course.