Cheshire West is overruled: review every DoLS you hold

The acid test is gone. On 2 June 2026 the Supreme Court overruled its own 2014 decision in Cheshire West and held that the test was wrong in law. DHSC guidance published on 15 June 2026 says many people currently subject to DoLS authorisations may no longer meet the threshold, and that cases should be reviewed as soon as is practicable. Every authorisation you hold now needs looking at again.

What the court decided

The case is a Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998, UKSC 2025-0042. The judgment and a press summary are both published.

The acid test that has governed practice since 2014 — that a person lacking capacity to consent, who is under continuous supervision and control and is not free to leave, is deprived of their liberty — no longer applies.

In its place sits a multifactorial assessment. The court requires consideration of the type, duration, effects and manner of implementation of restrictions. It also requires consideration of whether the person objects, and whether they can validly consent by expressing their wishes and feelings even where they lack legal capacity.

That last point is the deepest change. Under Cheshire West, a person's contentment was irrelevant; the objective conditions decided the question. Under the new approach, whether a person objects and whether they can express valid consent through wishes and feelings are part of the assessment, even where they lack capacity in the legal sense.

What DHSC has said

The DHSC guidance, published 15 June 2026, makes three points that determine what you do next.

Many people currently under DoLS authorisations may no longer meet the threshold.

Cases should be reviewed as soon as is practicable.

Existing authorisations remaining in place in the interim do not constitute unlawful deprivation.

Read the third point carefully, because it is the one that stops a panic. You are not acting unlawfully by holding an authorisation that was validly made under the old test while you work through reviews. What you cannot do is sit on it indefinitely.

NHS England was required to publish updated e-learning by 30 July 2026.

The reviews you now have to run

Start with a list. Every person in your service with a standard authorisation, every urgent authorisation, and every person subject to a Court of Protection order authorising deprivation of liberty in supported living or their own home. If you cannot produce that list in an afternoon, that is your first finding.

Then triage. Three groups will emerge.

People who plainly remain deprived of their liberty under the new approach — significant restrictions, sustained duration, active objection. These stay, and your reasoning gets rewritten to the new test.

People who plainly do not — light-touch arrangements that met the acid test only because of the continuous supervision limb, where the person is content, expresses no objection and can express wishes and feelings consistent with being where they are. These are the cases DHSC has in mind.

And the middle, which will be most of them. That is where the multifactorial assessment does its work, and where you need a documented reasoning trail rather than a conclusion.

What this means for you

• Produce the list of everyone with an authorisation or order today. Include people in respite and people currently in hospital.
• Contact your local authority DoLS team before you start reviewing. The supervisory body will have a position on sequencing and you should not be running a parallel process.
• Rewrite your assessment template to the new test: type, duration, effects and manner of implementation of restrictions; objection; capacity to express valid consent through wishes and feelings.
• Do not remove or vary restrictions because an authorisation may fall away. The care being provided and the legal framework authorising it are separate questions. A restriction that is necessary and proportionate stays necessary and proportionate.
• Prioritise by review or expiry date, then by cases where a person's contentment was previously treated as irrelevant. That second group is where the judgment bites hardest.
• Brief families and representatives before they read about it elsewhere. An authorisation ending is easily misread as a reduction in care.
• Put every member of staff who contributes to a DoLS assessment through the updated NHS England e-learning.
• Record your reasoning fully. A judgment reached in June 2026 and reviewed under a new test may be examined years later, and structured professional reasoning is the only defence.

Care Shield will not tell you whether a person meets the new threshold — that is a professional judgement your team has to make — but it will tell you which authorisations you hold, when each was last reviewed, and which ones nobody has looked at yet.

Where this came from

The Supreme Court judgment in UKSC 2025-0042, its press summary, and DHSC guidance on the UK Supreme Court 2026 judgment on what constitutes a deprivation of liberty.