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Changes to how deprivation of liberty is assessed in care settings

The UK Supreme Court’s decision, on 2 June 2026, changes how deprivation of liberty is assessed in care settings. 

Previously, a person was deemed deprived of their liberty if their care arrangements entailed continuous supervision, they were not free to leave and there was an element of state involvement. This applied to many people in supported living, hospital, residential care, or intensive family-supported arrangements. If they were considered deprived of their liberty, they would have legal safeguards put in place to protect them, including regular reviews, rights to challenge their placement, and access to advocacy.

After 2 June 2026, some people in these situations may no longer fall within that category, especially if they appear settled or do not object. The new ruling says people can give subjective consent to confinement by showing contentment with their care arrangements, even if they lack capacity to make decisions. This means a broader, more individualised assessment of the person’s situation, looking at the type of restrictions, how long they last, the effect on the person, and whether they are objecting, will now be used to determine if someone is deprived of their liberty.

On one hand, this may reduce unnecessary hurdles in cases where someone is genuinely settled and cared for in a way that is as ordinary and person-centred as possible. 

On the other hand, it may mean fewer automatic safeguards or legal oversight in some situations. 

Families may therefore need to be more alert to whether a person’s care plan still reflects their needs, wishes, and best interests. It is important to note that this change only relates to whether the arrangements amount to a deprivation of liberty. Other legal safeguards may still apply under different areas of law.

National guidance says the new legal test applies immediately. That means councils, NHS bodies, providers, and professionals will be working through which arrangements still amount to deprivation of liberty and which do not. If your loved one is already subject to formal deprivation of liberty safeguards, you may want to ask when those arrangements will be reviewed under the new approach. If there is any doubt about whether the arrangement may still amount to deprivation of liberty, guidance suggests referral and review should still be considered

Guidance for parent/carers

  • The judgment does not change the quality and nature of care your family member should receive.
  • Professionals must still make decisions in the best interests of your loved one if they lack capacity.
  • Care should still be the least restrictive option that safely meets the needs of your loved one.
  • Some people who previously had deprivation of liberty safeguards may no longer qualify for them under the new legal test.
  • This could mean fewer automatic reviews and less independent legal oversight of their care arrangements.
  • If the person living with Dravet Syndrome finds it difficult to communicate or express concerns, your knowledge of them remains extremely important.

Stay involved in care planning and reviews, and speak up if you think their needs or wishes are not being met. You can still raise concerns at any time if you believe your loved one’s care is too restrictive or no longer meets their needs, even if they are no longer considered to be deprived of their liberty.

If care arrangements are being reviewed following the judgment, you may wish to ask:

  • Has my family member’s deprivation of liberty status changed following the judgment?
  • How was this decision reached and what factors were considered, including my relative’s wishes, feelings and/or behaviours?
  • If they are no longer considered deprived of their liberty, what legal safeguards now apply?
  • When will their care arrangements next be reviewed?
  • How will any concerns or objections be identified if my relative finds it difficult to communicate them?
  • What would happen if their needs or circumstances change?
  • If I disagree with the decision, how can I ask for it to be reviewed or challenged?

Guidance from the Department of Health & Social Care

The UK's Supreme Court 2026 judgment on what constitutes a deprivation of liberty.

Read more here

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