DoLS assessments face uncertain future as acid test gets replaced

The ‘acid test’ has provided the assessment criteria in the context of Deprivation of Liberty Safeguards (DoLS) assessments for more than a decade. Following a referral made by the Attorney General of Northern Ireland, the Supreme Court has overturned the Cheshire West test and established a new multifactorial assessment. No single factor is now determinative in DoLS assessments. Following the judgment on 2 June 2026, this dismantling of the universal acid test is likely to have a substantial impact on the health and social care sector, as well as the legal sector. The Supreme Court suggested that this change will provide a more flexible, context-based approach to DoLS assessments, but there are questions to be addressed in respect of the application of the new multifactorial assessment in practice.

What is a DOLs assessment?

DoLS is a legal framework set out under the Mental Capacity Act 2005, designed to protect individuals who lack mental capacity to make decisions about their care, and who are receiving care in a place where they are not free to leave and are under constant supervision. Where it is concluded that an incapacitous individual is being deprived of their liberty, then a DoLS assessment must be completed to ascertain whether the deprivation is lawful and justified.

The previous test – P v Cheshire West and Chester Council [2014]

Previously under the case of Cheshire West, the Supreme Court created a simple rule commonly referred to as the ‘acid test’, which was used to establish whether an individual was being deprived of their liberty. The acid test set out a clear framework, confirming that a person is deprived of their liberty if:

• they are under continuous supervision and control
• they are not free to leave
• they lack the requisite mental capacity to consent to the arrangements.

The end of the acid test and moving to a multifactorial assessment

Post the Supreme Court judgment this month, the ‘gilded cage’ famously referred to by Baroness Hale in Cheshire West, has just upped its security. The new multifactorial assessment approach directs that if an incapable party appears satisfied with their care arrangements, this expressed satisfaction can constitute ‘valid consent’. If such valid consent is provided, then no deprivation of liberty arises, but the question is whether this constitutes incapacitous consent. The Supreme Court’s position is that it does not, stating that valid consent for the purpose of Article 5 is not the same as decision specific capacity under the Mental Capacity Act 2005. Regardless, it feels justified to be concerned about the extent of reliance on an incapable party’s expressed view, when it is not uncommon for such individuals to be changeable in their views, and vulnerable to influence and institutionalisation.

Another factor in the new assessment, is the ‘relative normality’ of the incapacitous party’s circumstances, which appears to centre around a consideration of how ‘normal’ the care arrangements are for that individual. The risks associated with the subjective assessment of this factor are clear.  

The Supreme Court has also said that the purpose of the living arrangements must be decided in the context of assessing whether an individual is deprived of their liberty.

What this means in practice

In the short term, it is likely that fewer people will be considered as being deprived of their liberty under the new assessment model. In reality, this will mean that fewer people will be afforded the protection of an independent professional assessing their case and raising the deprivation as a matter for consideration by the Court of Protection, when a deprivation is not considered to be lawful and in that person’s best interests. In the absence of a confirmed unlawful deprivation, there will be no automatic right to challenge under s21(A) of the Mental Capacity Act 2005. Further, in the event that a person/their Attorney or Deputy wants to challenge their living arrangements, access to Legal Aid will be means tested.

For Property & Affairs Deputies making an application for the sale of an incapable party’s property, there will be an increase in the number of individuals who are not considered to be deprived of their liberty. While this might, at first glance, appear to suggest that there will be less delay in obtaining orders for sale as the need for providing evidence as to a standard authorisation becomes unnecessary, it is also possible that this could result in an increase in the number of cases before the Court. It is quite plausible that the new multifactorial assessment will result in an increase in the number of disputes, and any associated house sale will be delayed while the DoLS assessment dispute is resolved.    

While the Supreme Court’s objective was to reduce the number of DoLS assessments and to move towards a more flexible, context-based approach, the new framework fails to highlight a standout rule as was previously the case. The legal uncertainty that is likely to follow because of this, may well result in an increase in the need for professional judgment in DoLS assessments, which in turn will likely result in the need for decisions to be litigated at the Court of Protection.