by Lorraine Currie, 11th June 2026
The image accompanying this blog has been provided by Lorraine’s daughter: the Magic Artist, Grace. To see her artwork (and for details about how to purchase it), you can visit her website: https://gracecurrie.art
Editorial Note: this is the first of many blog posts we plan to publish in the wake of the Supreme Court decision, handed down in June 2026, changing more than a decade of law and practice on ‘deprivation of liberty’ (see Endnote for more information).
In March 2014 I was at the West Midlands regional DoLS Lead group which I chaired. Together we sat with bated breath waiting for the Supreme Court judgment in Cheshire West. We discussed our own views: we all thought that MIG and MEG were NOT deprived of liberty but that P was. Then we watched as the judgment was handed down: all three were deprived of liberty. Purpose was no longer relevant, relative normality was no longer relevant, the person’s objections were no longer a feature. We suddenly had a one-sentence ‘acid test’. It blew us away! We did not agree.
Since then, we have departed a long way from pre–Cheshire West practice. In those days we spent ages analysing the many factors, discussing and debating with colleagues; is it or is it not a deprivation of liberty? This was by far the longest and most complex part of the assessment, and it was all gone, replaced with such a simple test.
Since then, I have continued in DoLS related work, as chair of the national group and the regional group, a DoLS Lead, a Best Interests Assessor (BIA), an authoriser and an Associate for West Midlands Association of Directors of Adult Social Services (WMADASS).
In all those roles, I have seen the situations, assessments and authorisations fall into two clear categories; pre- and post- Cheshire West. I would say 80% of cases were post-Cheshire West style and gained nothing from the process other than an independent check. The 20% of cases that were largely pre–Cheshire West style, fell into categories such as: people who shouldn’t be in care, people who wanted to go home, people who could go home, people who were overly restricted, people who were overly sedated, and so on.
After Cheshire West we were, of course, unable to keep up with the work-load, so we had to develop prioritisation tools and screening tools and pragmatic systems – all, of which really served to separate out pre- and post- Cheshire West situations.
Most backlogs will be made up (on the face of things) of post-Cheshire West type cases because we have already screened them for urgency, intensity of restrictions and so on.
We have invested huge amounts of money (Lord Sales refers to “severe misallocation of resources in the care and health system”) to bring little or no added benefit to most people. DoLS cannot distinguish between those whose circumstances were a ‘technical’ DoL (that is, they met the acid test) and those whose circumstances were a substantive DoL (that is, they had more elements involved, such as personally objecting). The acid test was broad and simple, and the DoLS scheme was narrow and complex.
There were 364,900 applications in 2024-25 and 118,850 remained incomplete at year end.
At year end 2024-25 there were 115,230 authorisations active.
These numbers are staggering. Large numbers of applications end up not able to be granted because by the time the wheels grind round to them the person is no longer there, they have moved or they have died. Only an average of 5% of patients are ever assessed in hospitals. People go in and go out, and yet the DoLS request remains.
Something was very, very wrong.
What the Supreme Court has now given us back is a common sense, multifactorial approach in place of a “one-size-fits-all” test. BIAs will return to carrying out a proper analysis of the objective element before doing anything else. They may then continue to look at whether the person can give valid consent, and from there other assessments may be carried out. This will reactivate and direct the many skills of a BIA to the people and situations which most need their skills.
Some people seem to be receiving the change negatively; there is almost a sense of mourning. But I want to challenge that with the positives.
Being able to target the specialist resource where it is most needed is to be welcomed. When we look at those cases where we have made a difference, I challenge you to consider and reflect: could that have happened anyway?
The person you have successfully returned home begs the question: why they were placed inappropriately and what can social workers learn from this?
The over-medicated, over-sedated person: why were there no regular reviews of medication by other professionals?
The overly restricted person: where were the social care (or other professional) reviews?
DoLS is not the only game in town. The MCA is much bigger, wider, far-reaching legislation. Most people associate the concepts of necessity and proportionality with DoLS (or more likely LPS), but these are the lynchpin human rights concepts attached to restraint and restriction at the heart of the MCA. All practitioners developing care plans should know whether and how the person will be restricted and should confirm why this is necessary and proportionate.
It is not all down to DoLS.
At a recent webinar we considered the question of ‘conditions’ in DoLS and most of the examples given by attendees were not conditions at all but were care management actions.
I believe that DoLs has papered over and covered up deficits in care management. The DoLS team and BIAs have been seen as the experts in all human rights based and mental capacity based work, and this has allowed others to act without fully embracing the principles.
As funds reduce for DoLS-related activity, they can potentially be redirected to ensuring rights-based, legally literate, practice in social care: the learning and experiences of BIAs can be shared to facilitate this.
Advocacy could be increased as we potentially reduce the number of Representatives who need to be paid and as our IMCA contracts reduce. The skills and experiences of DoLS work will inform their wider advocacy practice.
The introduction of the concept of (incapacitous) valid consent will provide lots of learning opportunities for us all. Right now, everyone is looking for guidance and easy answers and there are none. This is one place where I think it’s wise to put the brakes on. This is one area where case law may develop to guide us further.
We will learn together. We will have to figure out safeguards against coercion and control (particularly I think in 16 -18-year-olds). We will have be very aware that compliance is not always happiness. But we will be able to afford people the dignity of their wishes and feelings being taken seriously. Guidance from the Department of Health and Social Care in this respect will be key, but so will the new Code of Practice. I personally see this as a positive step forward.
This is a challenging time but I truly believe it will take us to a place which makes much more sense, where everyone is a human rights warrior not just BIAs, where everyone is legally literate and able to use the whole range of tools at their disposal.
None of this will happen overnight. I don’t think there is a Council out there who stopped using the acid test on 2/6/26 and fully implemented a multifactorial test overnight. There is a huge mountain to climb to get us there.
If there were 115,230 active DoLS in March 2025 this will have increased and these will all need to be revisited. The 118,850 people who were still waiting for assessment will all have to be considered against the new test and we do not yet know whether this will mean assessing them or screening them in or out of the test.
Added to this, ongoing referrals continue at the usual rate until further messaging is done to educate everyone about the judgment and its implications, and that means not only the challenge of enough assessors to assess but educating and upskilling assessors in the new test, especially those who qualified after 2014. There is a huge mountain of work requiring even greater resources to get us through to the new normal.
The new normal must be a place where those who need protecting are protected, not only by DoLS but by all the legal tools available; where those who can be empowered are empowered, and their wishes and feelings are given the validity they deserve. It must be a place where all professionals are in the human rights business and all know which legal framework they are operating under and the limits of their power.
Ultimately a place of dignity and respect.
Lorraine Currie is now a freelance Mental Capacity Consultant. She has over 30 years Local Authority experience, is a qualified social worker and in 2021 received the LGC Award for Outstanding Individual Contribution. Lorraine provides extensive training and is an Associate for the West Midlands Association of Directors of Adult Social Services (WMADASS) working on DoLS. Lorraine is on Bluesky as @lorrainecurrie.bsky.social.
Endnote
Back in 2014, In Cheshire West, the Supreme Court considered the meaning of a deprivation of liberty (DoL) through reference to Article 5 of the European Convention on Human Rights. Lady Hale, giving the majority but not unanimous judgment of the Court, presented an ‘acid test’ for deprivation of liberty: is a person under continuous supervision and control, and not free to leave?
On Tuesday 2 June 2026, the Supreme Court handed down judgment in what is increasingly being referred to as “AGNI’ (the case was brought by the Attorney General of Northern Ireland). The Supreme Court overturned Cheshire West, finding the acid test to be wrong in law, and directed a different approach.
First, the identification of the objective element of a deprivation of liberty must entail a multifactorial analysis, which includes consideration of the intensity and purpose of confinement. If these conditions are not satisfied, there is no deprivation of liberty.
Second, a person may lack capacity to make decisions about their care and residence but can nevertheless give valid consent through an expression of their (positive) wishes and feelings. If a person is giving such consent, they are not deprived of their liberty.
To access the judgment, see: Judgment (PDF) (hyperlinked)
To access the court’s approved press summary, see: Press Summary (PDF) (hyperlinked)
To access the commentary published by the Open Justice Court of Protection Project, see: Commentary on the UK Supreme Court case about deprivation of liberty (hyperlinked)
If you would like to contribute a commentary about this judgment, please contact openjustice@yahoo.com, and mark your email for the attention of Daniel Clark.
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