Deprivation of Liberty Safeguards (DoLS). A new interpretation of ‘consent’.
An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing staff, medical staff and other professions rely on when caring for patients.
On the 2nd June 2026, the UK Supreme Court handed down a judgment overruling it’s previous decision in Cheshire West [2014].
(Please refer to previous Clinical Law Update; ‘Support for defending liberty’).
The new decision immediately alters our approach to managing patients of 16 and over who lack capacity.
In A Reference by the Attorney General for Northern Ireland…[2026] UKSC 16, seven judges considered a question from the chief legal adviser to the NI Executive Committee as to what counts as ‘deprivation of liberty’ under Article 5(1) [the right to liberty] of the European Convention on Human Rights.
Until the 2nd June, when considering an incapacitated person (thus unable to provide consent) being treated in an NHS hospital: If the patient was under our complete supervision and control, and was not free to leave…then urgent and anxious consideration was necessary, involving our safeguarding services, as to whether a Deprivation of Liberty Safeguards (DoLS) application should be made; ultimately, if necessary, to the Court of Protection.
The threshold for considering whether the DoLS structure was engaged for an incapacitated person; namely the absence of consent, our complete supervision and control of them, not free to leave… was described in Cheshire West as an objective ‘acid test’.
The conventional understanding of Cheshire West was that the lack of mental capacity of an individual to agree to their care arrangements equated to the lack of ‘valid consent’ from the patient for their confinement, both in hospital or social care settings.
The Supreme Court in the 2026 case recognised that this definition of deprivation of liberty had been drawn so widely in 2014 that an estimated 400,000 people were subsequently considered to fall into this group, with hundreds of thousands of cases waiting to be determined. The Dept for Health and Social Care, intervening in the case, told the Supreme Court that Cheshire West went too far…setting the bar too low for a deprivation of liberty, and oversimplifying the threshold by use of the acid test.
Seeking to concentrate scarce resources on patients whose liberty may require urgent defence, the new NI Code of Practice for the Deprivation of Liberty Safeguards (DoLS) proposes that there can be valid consent (and therefore no deprivation of liberty) despite a person's lack of capacity to make decisions about care or accommodation or treatment: Providing that person, amongst other considerations, actively expresses ‘positive wishes and feelings’ about the arrangements.
The court in Cheshire West had not considered the question of the validity of consent, since it was common ground that the three patients at the centre of that judgment lacked capacity, allowing the court to concentrate only upon whether the restrictions imposed upon them amounted to confinement…hence the acid test. But the Supreme Court in A Reference to the AGNI [2026] now provides clinicians with a novel species of ‘consent’, with incapacitated patients presumed to be providing valid consent : ‘A person may not have mental capacity to make decisions about their care and residence arrangements, but if they have a basic level of awareness and consciousness of their living arrangements, that is sufficient to enable them to know and communicate whether they are happy or unhappy with them, they may be treated as able to give or withhold valid consent to confinement by an expression of their wishes and feelings.’
This creates a subjective test. Under these circumstances, the Supreme Court finds that there would be no deprivation of liberty… So no need, it seems, to follow the deprivation of liberty safeguards for such a patient.
There is no appeal from the Supreme Court’s decisions. We should anticipate many new Court of Protection cases; seeking to provide clinical context for the entirely new subjective threshold of an incapacitated patient who by showing they are happy are held to provide their ‘valid consent’ to what would formerly have been considered a deprivation of liberty.
Mr Robert Wheeler
Department of clinical law
June 2026