Cheshire West Ruling: DoLS Changes Explained
For twelve years, one phrase guided every DoLS decision in Care: “a gilded cage is still a cage.” It meant that no matter how kind or comfortable someone’s Care was, if they couldn’t consent to it, were always supervised, and weren’t free to leave — it counted as a Deprivation of Liberty and needed authorising.
On 2 June 2026, the Supreme Court changed that. The ‘Acid Test’ from the 2014 Cheshire West case has been overturned, effective immediately. The case arose from a reference by the Attorney General for Northern Ireland, who asked the Court whether a revised DoLS Code of Practice — allowing valid consent even where someone lacks capacity — would be Lawful. This wasn’t a direct appeal from an English care case, but the ruling applies UK-wide. Read more here.
Here’s what that means for you and your Team.
First: what is DoLS in Health and Social Care?
DoLS stands for the Deprivation of Liberty Safeguards. It’s the Legal process, under the Mental Capacity Act, that protects people in Care Homes and Hospitals who can’t consent to their Care arrangements. If someone’s Care deprives them of their Liberty, it must be independently checked and authorised.
That hasn’t changed. DoLS still exists, and the Mental Capacity Act is exactly the same as it was before.
So what has changed?
One thing: how we decide whether someone is actually being deprived of their Liberty.
Under the old Acid Test, the answer was almost automatic; lacks capacity, continuously supervised, not free to leave. That’s a DoLS.
Now there’s no automatic test. Instead:
- Each person’s situation must be looked at individually, weighing up all the circumstances and not ticking three boxes.
- A person’s own wishes and feelings now count. If someone is genuinely happy and settled where they are, not just going along with it; that can mean they’re not deprived of their liberty at all, even if they lack capacity.
In short: the question is no longer “does this fit the Acid Test?” It’s “looking at the whole picture, including what this person wants and feels, is this really a Deprivation of Liberty?”
What does this mean day to day?
Fewer DoLS applications. Many arrangements that needed authorising last month won’t need it now.
Forms are completed differently, especially Part 3. Assessors can no longer rely on the old three-box logic. They need to show an individual judgement, including the person’s wishes and feelings.
Existing authorisations will be reviewed. Some people currently under DoLS may no longer need to be.
The Law now recognises that someone can give valid consent to their Care Arrangements even if they lack Capacity under the Mental Capacity Act. As long as they’re aware of their situation and can express that they’re happy with it. That means how your Staff record wishes and feelings really matters: A Resident’s genuine contentment, shown in words or behaviour, is now the evidence that determines whether DoLS applies at all. This is not just good practice.
One thing to be aware of
Not everyone welcomes this ruling. Charities including Mencap and Mind have warned it removes important protections for people with severe Disabilities. Others say it fixes a system that had become overloaded. Either way, the Law has changed. And your Team needs to work to the Law as it stands today.
What should you do now?
- Tell your Team the Acid Test is gone.
- Check your Policies and Training — anything based on “a gilded cage is still a cage” is out of date.
- Improve how you record Residents’ wishes and feelings.
- Speak to your Supervisory Body about existing authorisations.
- If in doubt, don’t assume consent. Where there’s genuine uncertainty about a person’s wishes and feelings, the old Safeguards still apply. Refer to your Supervisory Body or the Court of Protection.
We can help
CBAT is updating all of our MCA & DoLS Training and Competency Assessments to reflect the new ruling.
Whether you want DoLS online Training for your Health and Social Care Team or face-to-face Sessions at your Service, our Trainers — including former CQC Inspectors — can get your Staff up to speed quickly.
We also deliver Combined Safeguarding Training covering adults and children, ideal for refreshing knowledge alongside the DoLS changes. Learn more here.