Deprivation of Liberty – a new legal test and a new legal framework?

We all know that the legal framework around deprivation of liberty is in desperate need of reform; tens of thousands of people are considered to be unlawfully deprived of their liberty, whether waiting too long for an authorisation under the Deprivation of Liberty Safeguards (“DoLS” - for people over 18 years old, in care homes and hospitals), or when an application ought to be made to court for other situations.  

We may be about to get a real change – potentially both in the test to identify a deprivation of liberty (“DoL”), and in the system by which any DoL is authorised.

Defining a DoL – a focus on “consent” and revisiting Cheshire West

The current system, launched in 2009 and funded for an estimate of a few tens of thousands of cases per year, has been swamped by the hundreds of thousands of cases a year there have been since the Supreme Court decision in Cheshire West in 2014. In that case the Supreme Court determined that the test for identifying a confinement for the purposes of a DoL should be that someone is “under continuous supervision and control and not free to leave” (the acid test), and - crucially – that good intentions, care that is appropriate for the person’s needs, or that they are content there – do not stop it being considered a DoL. 

As well as there being a confinement, (and any DoL being imputable to the state - everything in health and social care meets that test!), there is a third part to the definition of a DoL– there must also be no valid consent. (This is one reason why things are more complicated for children, raising whether or not the consent of a parent ought to mean that there is no DoL, even if the restrictions meet the acid test for a confinement - broadly, parents’ consent can negate a DoL where the child is under the age of 16, but not after that). 

Cheshire West didn’t focus on the question of valid consent – it was common ground that each of the individuals in that case lacked capacity to make decisions about their care and residence, and therefore there was no valid consent to the restrictions, allowing the court to focus on the question of whether the restrictions amounted to a confinement, according to the acid test. 

The Attorney General of Northern Ireland (AGNI) has now made an application to the Supreme Court all about consent. In particular, the AGNI proposes to amend the Code of Practice that goes with the DoLS system in Northern Ireland to say that there can be valid consent (and therefore there is no DoL), despite the person lacking capacity to make decisions about their care and residence, if they “actively express positive wishes and feelings about the arrangements”. 

Under devolution arrangements, the AGNI has asked the Supreme Court if it will be lawful to make this change, and whether such a Code would still be compliant with Article 5 of the European Convention of Human Rights. 

The AGNI’s argument is that at present no credit is given to the views of the patient themselves, and the system does not distinguish between someone who is exactly where they want to be and someone who is not, treating them both equally as deprived of their liberty and needing the same safeguards. 

The Lord Advocate of Scotland supports the AGNI’s case, and if the Supreme Court buy this, the AGNI estimates that it would reduce the number of people currently regarded as DoL by around 25%, allowing the system to focus its resources more appropriately. 

The Secretary of State for Health and Social Care (SSHSC) has also intervened in the Supreme Court to support AGNI’s application but invites the court to go even further. SSHSC argues that the court should revisit the Cheshire West judgment itself, since in that case the majority, led by Lady Hale, said that the patient’s contentment with the placement was not relevant to the question of whether or not there is a DoL. That was in the context of considering the question of confinement, rather than the question of consent, and so – SSHSC argues – the Supreme Court needs to go back to the drawing board on how we define confinement, giving a chance to narrow the goalposts again, after the floodgates of the Cheshire West decision. 

Ranged against the AGNI, the Lord Advocate and the SSHSC, are the Official Solicitor and a group of charities. 

The Official Solicitor’s role is to act as a litigation friend for individuals in Court of Protection cases. She argues that there are all sorts of problems with the AGNI’s proposed approach – including the logical challenge of reconciling that someone lacks capacity to make decisions about the care and residence, but can nonetheless “consent” to it; the practicality of establishing whether someone is expressing “positive feelings” about a placement; and the wisdom of removing someone from these safeguards based on something so subjective, and likely to depend heavily on the opinion of those who are providing the restrictive care. 

In response to the SSHSC, the Official Solicitor argues that there is no basis to revisit Cheshire West, since the case did not deal with the issue of consent that is relevant to the AGNI’s application, and that it is dangerous to reconsider the issue of confinement in the absence of a specific case / factual background to work with. 

The charities involved (Mind, Mencap and the National Autistic Society) broadly back the Official Solicitor and add their concerns about the extent to which people with disabilities might be (mis)perceived to be happy about their situation. They oppose the “highly subjective and hopelessly vague” idea that someone might be denied independent scrutiny as a result of a “positive attitude”, which must go beyond mere compliance enough to constitute “valid consent” to what would otherwise be a DoL, when by definition the person is unable to understand or retain, or to use / weigh the information relevant to the decision about their care. 

We will see how the Supreme Court will deal with this over the hearing, listed for 20-22 October 2025, which will be live streamed. All the written submissions are available here.

It is likely that the judgment will take several months to be handed down – in Cheshire West itself for instance the court took 5 months to publish its decision, and it is not unknown for the Supreme Court to take a year!

Liberty Protection Safeguards (LPS) revived

In what seems unlikely to be a coincidence, on 18 October 2025, the Saturday before the Supreme Court hearing, the government announced that it intends to run a consultation on the implementation of the Liberty Protection Safeguards! 

Though the legislation to underpin the LPS was passed in May 2019, it was not implemented, and as recently as June this year the government did not seem all that interested in doing so. 

There was a consultation in 2022 about a draft Code of Practice to update the code for the MCA and to support the implementation of the LPS, but the government response to that consultation has never been published. 

It is not entirely clear how the proposed fresh consultation will be any different. 

The idea of LPS is both to replace DoLS entirely, and to end the need to make applications to court to authorise a DoL, as the scheme will cover all settings, and include everyone over the age of 16. 

Rather than resting on local authorities (or Local Health Boards in Wales) alone, the responsibility of authorisation will be shared with the NHS, with an NHS hospital authorising any DoL for an inpatient, and ICBs responsible for any DoL in the community of a patient whose restrictions arise in a package of NHS Continuing Healthcare. 

LPS would spread resources more thinly (or focus them better, depending on your point of view), with potential for longer authorisations of up to 3 years, and independent scrutiny focussed on those who are “objecting” to their restrictions (bearing in mind that a potential outcome of the AGNI case is that someone who shows positive feelings about the placement might then be considered not to be deprived of their liberty at all!). 

The consultation is planned for “the first half” of 2026, though presumably this will have to wait if the Supreme Court do not hand down their judgment fairly promptly, as surely the consultation will need the new definition of DoL (if there is one) to work with. 

As for actual implementation, say we get AGNI judgment within a few months, and a consultation on LPS in the Spring / Summer 2026 (which feels very optimistic), we might get an outcome of that consultation in the Autumn 2026. 

We would then need the Regulations that put the flesh on the bones of the legislation to be finalised and passed. 

Assuming that it keeps the current LPS proposal of something like the AMCP (Approved Mental Capacity Practitioner) role, replacing the DoLS system’s BIA (Best Interests Assessor) role, and that this needs university equivalent accreditation, then that course needs to be developed, established and then delivered to a sufficient cohort for the new system to start, perhaps needing 12-18 months for this alone.  A period of time for training for the wider system is needed as well, though some of that might be in parallel to the AMCP courses. 

Overall, it seems unlikely that we are going to see LPS in action before 2028/29, and who knows what could be happening in health and social care more widely by then. The political / financial pressures in the run up to the next election (likely to be late 2028 / early 2029?) might be a factor, with the focus likely to be on whether the costs of LPS implementation will show an impact on what is most likely to count for political purposes - reduction on NHS waiting times.

All things considered though, the announcement of a consultation and plan to implement LPS feels significant, especially in the context of the Supreme Court reconsidering how we define DoL at all. 

Even so, it seems likely that we will be using the current definition, and the current tools, to deal with DoL for a good while yet.