Key messages
We would like to draw your attention to the recent Supreme Court Judgment handed down on the 2nd June 2026 (known as the AGNI Ruling), which significantly revises the approach to deprivation of liberty within Article 5 of the European Convention on Human Rights (ECHR). The judgment is anticipated to have significant practical implications on both deprivation of liberty in the community and DoLS.
Deprivation of Liberty Safeguards system will continue to be needed but will in time focus on a smaller group of people who are likely to be unhappy with their care arrangements and are actively objecting to confinement. In addition, where the restrictions are significant and there is a need to provide the legal safeguards and the ability to challenge their detention.
In this judgment, the Supreme Court has moved away from the long-standing ‘Acid Test’ established in Cheshire West (2014) case which focused on whether the person was under continuous supervision and control and whether a person was free to leave. This no longer determinative. The Supreme Court emphasised that undue weight had previously been placed on the ‘acid test’, and that a more nuanced and context-sensitive analysis is now required. Instead, the Court has introduced a broader ‘multifactorial assessment’ approach to deprivation of liberty.
The AGNI Ruling
The UK Supreme Court issued a landmark judgment on 2 June 2026 which overturns the established legal definition of deprivation of liberty set out in the 2014 Cheshire West case and restored a multifactorial approach in determining if a person is experiencing a deprivation of liberty.
The Supreme Court considered that the ability to give subjective consent to what would otherwise be a deprivation of liberty was an ‘autonomous concept’ for the purposes of Article 5 ECHR. Meaning some people who lack legal capacity under the Mental Capacity Act 2005, may be able to give valid consent through establishing their wishes and feelings.
As a result of the judgment, fewer people are likely to meet the revised threshold for DoLS or Court of Protection authorisation. Some health or care arrangements that previously met the “Acid Test” may not meet the new “multifactorial test”.
DoLS applications continue to go through the Somerset Council DoLS Team (Supervisory Body) and authorisations continue to be processed in line with the new definition set out by the Supreme Court.
What has changed
Previous position (since 2014)
A person was considered deprived of their liberty if:
- They were under continuous supervision and control, and not free to leave (“acid test”)
- The person lacked mental capacity to consent.
- The persons care arrangements are imputable to the state.
New position following Supreme Court ruling
- The “acid test” is no longer sufficient and should not be applied in isolation.
- A multifactorial approach is required to decide whether a person is deprived of their liberty. This should consider factors such as the nature, purpose, relative normality and impact of any restrictions or confinement.
- Crucially, a person may be able to give valid consent even if they lack legal capacity within the Mental Capacity Act 2005 to make decisions regarding care and accommodation.
National Guidance
The Department of Health and Social Care (DHSC) published interim guidance on 15 June 2026.
DHSC will publish additional guidance in due course to assist the sector further. They are working with a range of stakeholder partners and charities to develop this guidance. It will include practical case studies to help people understand how they should apply the judgment to their work.
Somerset Council DoLS Team (Supervisory Body) interim position
While waiting for DHSC fully developed guidance, the Somerset Council DoLS Team will continue to triage DoLS applications against the new definition.
Assessments will take place for people identified to be actively objecting to care, support and/or accommodation arrangements, or where restrictions are significant and there is a need to provide the legal safeguards and the ability to challenge.
The Supervisory Body will continue to scrutinise completed assessments and decide whether to grant or refuse the Urgent or Standard Authorisation based on the multifactorial assessment undertaken. The decision-making processes will be undertaken by two Best Interest Leads or a Best Interest Lead and the MCA and DoLS Service Manager.
Please continue to:
- Follow the Mental Capacity Act and its core principles- The Mental Capacity Act 2005 is still law and the persons mental capacity to make decisions should be assessed in line with the Act
- Ensure any proposed care and support is necessary, proportionate, and the least restrictive option.
- Clearly record the person’s wishes, feelings, and views in all decisions and care planning.
- Managing Authorities should continue in their responsibility to identify if the person is being deprived of their liberty under the AGNI definition of deprivation of liberty and apply for an authorisation via the Supervisory Body.
Additional resources
- Department of Health and Social Care (DHSC) interim guidance published on 15 June 2026.
- Browne Jacobson LLP gives a practical summary for health and social care, including that the old acid test was said to be too crude and that courts must now look at the whole situation, including whether the person can give valid subjective consent:
- Cheshire West overruled: DoL reshaped for health and social care
- In a special, one-off edition of Community Care Inform’s podcast ‘Learn on the go’, barrister Alex Ruck Keene discusses the so-called AGNI ruling and what it means for social workers and other professionals in the UK.
- Alex Ruck-Keene has also recorded this video about the meaning of deprivation of liberty following the decision.
Contact details
Somerset Council DoLS Team (Supervisory Body): dolsinformation@somerset.gov.uk
MCA and DoLS Service Manager: Sarah Ballantyne sarah.ballantyne@somerset.gov.uk
