Referrals for Deprivation of Liberty Safeguards must continue to be responded to as councils transition into “new stage” following Supreme Court ruling: ADASS

Meanwhile, the organisation endorsed guidance issued by the Department for Health and Social Care (DHSC) on key points from the Supreme Court judgment on what constitutes a deprivation of liberty, outlining the implications for health and social care staff, local authorities and others.

On 2 June in 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 [2026] UKSC 16, the Supreme Court took the unusual step of overruling its 2014 decision in Cheshire West, which it concluded had been wrong in principle.

In an update note published yesterday, ADASS reminded local authorities there is “no period of grace”. Therefore, the so-called 'acid test' in Cheshire West must no longer be followed.

It added: “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 drew from the DHSC guidance several points to be followed by all councils:  

• “Councils will need to begin aligning their practice with this new legal position. Practitioners should not be following the acid test of Cheshire West but the multifactorial test of AGNI.  
• 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.  
• 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.
• 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.
• 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. 
• 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.  
• 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.”

The Association said: “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.”

It noted that 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.

The Association revealed it is actively working on the development of a priority/review tool through the national DoLS Leads network.

Lottie Winson

See also: The Supreme Court’s ruling in AGNI - Jacqui Thomas KC and Chloe Lee examine the repercussions for practitioners – including in relation to cases involving children – of the Supreme Court’s recent ruling on deprivation of liberty and valid consent.