A new approach to deprivation of liberty cases: key implications for residential colleges

In A Reference by the Attorney General for Northern Ireland [2026] UKSC 16 (AGNI), the Supreme Court overturned the approach established in Cheshire West, which for over a decade has been used to decide whether a person who lacks capacity to make decisions about their residence and care is deprived of their liberty for the purposes of Article 5 of the European Convention on Human Rights.

The judgment is likely to mean that fewer people are considered deprived of their liberty and therefore fewer care arrangements will require authorisation under the Deprivation of Liberty Safeguards (DoLS) scheme.

What has changed? 

1. The objective test

Until now, organisations have relied on the "acid test" to determine whether a deprivation of liberty exists.

The Supreme Court has now replaced that approach with a new test that requires a broader assessment of an individual's circumstances, including: .

• The restrictions placed on them.
• Their wishes and feelings.
• Whether they object to the arrangements; and
• How closely their circumstances resemble ordinary life.

The assessment is no longer limited to a simple checklist and must take account of the person's overall situation.

2. The subjective test

The Supreme Court also confirmed that a person may be able to consent to their living and care arrangements even if they lack capacity to make broader decisions about care or residence.

The key question is whether they have a basic level of awareness and consciousness of their living arrangemens that is sufficient to enable them to know and communicate whether they are happy or unhappy with them, and they may be treated as able to give or withhold valid consent to confinement by an expression of their wishes and feelings. 

If they can validly consent, a deprivation of liberty authorisation may not be required. Whether valid consent exists will need careful consideration in each case.

What impact will this decision have on residential colleges? 

Residential colleges regularly support young people and adults who may have learning disabilities, autism, acquired brain injuries or other conditions that affect their ability to make decisions about their care and living arrangements. As part of providing a safe and supportive environment, colleges often have rules, supervision arrangements and safeguarding measures in place that can raise questions about whether a student is deprived of their liberty.

Many colleges will therefore be familiar with DoLS authorisations, Court of Protection applications and the need to assess whether care arrangements are the least restrictive option available. Because the AGNI decision changes the legal test for determining a deprivation of liberty, it may affect how existing and future arrangements are assessed. Colleges should therefore understand the new approach and consider whether their existing practices, policies or authorisations need to be reviewed.

The new approach is expected to result in significantly fewer people being regarded as deprived of their liberty.

As a result:

• Some existing DoLS authorisations may no longer be required
• Ongoing deprivation of liberty cases may need to be reviewed
• Future referrals may require a different assessment of the individual's circumstances; and
• Greater attention may need to be given to identifying and recording students' wishes, feelings and objections.

While fewer students may fall within the DoLS framework, colleges still need to ensure that restrictions are appropriate, proportionate and in the individual's best interests. 

What should residential colleges do now?

Residential colleges supporting young people and adults who may be affected by deprivation of liberty should:

• Review relevant policies, procedures and guidance
• Ensure staff understand the changes introduced by the AGNI decision
• Consider whether existing DoLS authorisations or Court of Protection orders require review
• Maintain clear records of students' wishes, feelings and any objections to their care or living arrangements; and
• Monitor further guidance from the Department of Health and NHS England.

Government guidance published following the judgment provides a useful starting point for organisations reviewing their current arrangements.

What about the Care Act and Court of Protection?

The AGNI decision does not remove other important legal protections.

Colleges must continue to comply with their responsibilities under the Care Act 2014, including review and advocacy requirements where they apply.

The Court of Protection also continues to play a key role and can still determine disputes about capacity, care arrangements, residence, contact, medical treatment and whether a person's arrangements amount to a deprivation of liberty.

Need help?

Please speak to one of our public law experts: Human Rights & Civil Liberties Lawyers | Irwin Mitchell

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