The Supreme Court rewrote the law on depriving someone of their liberty in June, effective immediately. The only guidance the government has issued since links to a code of practice written in 2008, six years before the rule it just scrapped even existed.
Estimated reading time: 6 minutes
In short. On 2 June 2026 the Supreme Court ruled that the twelve-year-old "acid test" for deciding whether someone is being unlawfully confined was wrong, effective immediately across the UK [2]. The Department of Health and Social Care's own guidance calls the Deprivation of Liberty Safeguards Code of Practice "a helpful starting point" for applying the new test [2]. Open that document and its title page reads "Issued by the Lord Chancellor on 26 August 2008" [4], unrevised, six years before the 2014 test the Supreme Court just scrapped was even decided. DHSC's promised interim guidance and case studies carry no publication date [2], and the e-learning material it points to instead is login-gated and not due for revision until December [2]. Three documented mistakes: four stars.
The Supreme Court's judgment, handed down on 2 June 2026 in a case brought by the Attorney General for Northern Ireland, concluded that "the Cheshire West 2014 judgment was incorrect" and replaced its single "acid test" with a multifactorial assessment of "the type, duration, effects and manner of implementation" of any restriction on a person's freedom [2]. "These changes to the definition of a deprivation of liberty apply with immediate effect and extend across the UK," DHSC's summary states, for anyone in a hospital, care home or community placement who lacks the capacity to consent to the arrangement [2]. DHSC published its guidance page on the change on 15 June 2026 and updated it again on 22 September [1].
A rule that applies today, and a code of practice from 2008
DHSC's own text is candid about the gap it is filling. Under "Existing DoLS authorisations," the guidance says "the DoLS code of practice was originally published in 2008 before the judgment in Cheshire West 2014," was "republished on 2 June 2026," and that "Chapter 2 may remain a helpful starting point in relation to the objective element of deprivation of liberty (while also noting that it does not reflect fully the Supreme Court's 2026 decision)" [2]. GOV.UK's own listing for that document states "Published: 2 June 2026" and names the Office of the Public Guardian as the issuing body [3]. Downloading the PDF shows what "republished" meant: the title page still reads "Issued by the Lord Chancellor on 26 August 2008 in accordance with sections 42 and 43 of the Act," the copyright page still reads "First published 2008," and the foreword is still signed "Ivan Lewis, Parliamentary Under Secretary of State, Department of Health" and "Edwina Hart AM MBE, Minister for Health and Social Services, Welsh Assembly Government" [4]. Nothing inside the document has been touched. Only the publish date on GOV.UK has moved.
"Does not reflect fully" understates the gap. Chapter 2, titled "What is deprivation of liberty?", was written to explain the law as it stood before Cheshire West existed, not after it. Its own worked examples of "relevant" case law run from HM v Switzerland (2002) through LLBC v TG (2007) and HL v United Kingdom, the 2004 "Bournewood" case that prompted Parliament to create the safeguards in the first place [4]. None of them mention an "acid test," because the Supreme Court had not invented one yet. The document DHSC calls a "helpful starting point" for applying a 2026 multifactorial test is a document written before the 2014 test it replaces was decided, let alone the test that replaces that.
This is not an optional reference. Section 42(4) of the Mental Capacity Act 2005 makes it "the duty of a person to have regard to any relevant code if he is acting in relation to a person who lacks capacity" as, among other listed capacities, someone acting "in a professional capacity" or "for remuneration" [6]. Section 42(5) requires a court or tribunal to take a provision of the code, or a failure to comply with it, "into account in deciding the question" where it is relevant to proceedings before it [6]. It is the Act's designated reference text, still standing in, unrevised, as the document DHSC directs practitioners to first.
The guidance and the training both arrive later, if they arrive at all
DHSC's own "Next steps" section promises more: "DHSC will publish additional interim guidance to assist with the implications of this ruling... It will include practical case studies to help people understand how they should apply the judgment to their work" [2]. No date is given. The page's own update history shows what has actually landed since: a first publication on 15 June, and a single edit on 22 September that "updated the 'Who this applies to' section to add links to MCA and DoLS e-learning material" [1]. No interim guidance, no case studies, more than three months after the judgment.
The e-learning material itself does not close the gap either. "On 30 July 2026, NHS England published updated MCA and DoLS e-learning material (login required). Further development work is underway and revised materials will be updated by December 2026," DHSC's own text says [2]. That is six months after a ruling described as taking "immediate effect," gated behind an NHS login, while DHSC's own "who this applies to" list names not just NHS staff but "anyone who cares for an individual who lacks capacity" and local authority supervisory bodies running the DoLS process day to day [2].
The scale this lands on is not small. NHS Digital's most recent official statistics record an estimated 332,455 DoLS applications received in England in 2023-24 alone, with only 19% of standard applications completed within the statutory 21-day timeframe and an average completion time of 144 days [5]. Local authorities were already missing their own existing legal deadline for the old test, on a six-figure annual caseload, before being told to also review cases against a new one "as soon as is practicable," with no announced extra resource and no date for the guidance meant to explain how [2].
The claims, tested
| DHSC's own words | What the evidence shows | Verdict |
|---|---|---|
| "Chapter 2 may remain a helpful starting point in relation to the objective element of deprivation of liberty" [2] | The document's title page, copyright line and ministerial foreword are unrevised from 2008; its worked case-law examples run 2002 to 2007, before the 2014 test the 2026 judgment overturned even existed [4] | "Does not reflect fully" undersells a document written before the rule it is meant to replace was decided |
| "DHSC will publish additional interim guidance... It will include practical case studies" [2] | The page's own update history shows one edit since first publication, adding e-learning links, over three months after the judgment [1] | Promised guidance has no publication date and has not arrived |
| NHS England e-learning material is offered as the practical training route [2] | The material is login-gated, incomplete until December 2026, and DHSC's own audience list includes non-NHS carers and local authority staff [2] | The training route does not reach everyone the rule already applies to |
The mistakes, counted
The code of practice DHSC calls a helpful starting point predates the rule it is meant to explain (1). Its title page, copyright page and foreword are unrevised from 2008, six years before Cheshire West 2014 and eighteen years before the 2026 judgment. GOV.UK's own listing dates the "publication" to 2 June 2026; nothing inside the document changed.
The interim guidance and case studies DHSC promised carry no date and have not appeared (2). More than three months after the judgment, the guidance page's own update history shows a single edit: adding links to e-learning material, not the promised guidance.
The e-learning route offered instead does not reach the people the rule already binds (3). It is login-gated, incomplete until December 2026, six months after the ruling's stated immediate effect, while DHSC's own "who this applies to" section names carers, independent providers and local authority staff alongside NHS teams.
Credit where due
DHSC's page does not pretend the transition is clean. It tells providers and local authorities to "use their professional experience and take a proportionate and considered approach... before further government guidance is published," and warns that "a more cautious approach will be needed, with borderline cases referred for review" [2]. It also heads off a panic response: where someone's existing DoLS authorisation no longer applies under the new test, "leaving the authorisation in place in the meantime does not mean the person is being unlawfully deprived of their liberty" [2], buying reviewing bodies time rather than demanding an unworkable overnight reassessment of every live case.
Verdict
Four stars, from three documented mistakes. A Supreme Court ruling changed, with immediate effect, how hundreds of thousands of decisions a year about depriving someone of their liberty must be made. The government's own summary is honest about the scale of the change and reasonable about the pace it expects. What it does not have, three and a half months on, is a working document to apply instead of the old test: the one it points to is older than the old test itself.
Sources
- GOV.UK, "Changes to the definition of deprivation of liberty" (Department of Health and Social Care, published 15 June 2026, updated 22 September 2026, checked 23 September 2026). https://www.gov.uk/government/publications/changes-to-the-definition-of-deprivation-of-liberty
- GOV.UK, "UK Supreme Court 2026 judgment on what constitutes a deprivation of liberty" (Department of Health and Social Care, updated 22 September 2026). https://www.gov.uk/government/publications/changes-to-the-definition-of-deprivation-of-liberty/uk-supreme-court-2026-judgment-on-what-constitutes-a-deprivation-of-liberty
- GOV.UK, "Deprivation of Liberty Code of Practice" (Office of the Public Guardian, published 2 June 2026). https://www.gov.uk/government/publications/deprivation-of-liberty-code-of-practice
- "Mental Capacity Act 2005: Deprivation of Liberty Safeguards, Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice" (PDF, issued by the Lord Chancellor 26 August 2008). https://assets.publishing.service.gov.uk/media/6a19543359fb7a60f827f4c6/dols_eng.pdf
- NHS England Digital, "Mental Capacity Act 2005, Deprivation of Liberty Safeguards, 2023-24" (published 22 August 2024). https://digital.nhs.uk/data-and-information/publications/statistical/mental-capacity-act-2005-deprivation-of-liberty-safeguards-assessments/2023-24
- legislation.gov.uk, "Mental Capacity Act 2005, Section 42" (checked 23 September 2026). https://www.legislation.gov.uk/ukpga/2005/9/section/42