A big headline and a real change in the law — but not a reason to panic. Here's what has actually happened, what hasn't changed, and the sensible next steps for your service.
This is Liz West's plain-English reading of the 2 June 2026 judgment and CQC's statement, written to help care providers make sense of a confusing change. It reflects our interpretation — it isn't official guidance, and it isn't legal advice. The law here is still developing. If you're worried about a particular person, decision or authorisation, always take your own legal advice.
On 2 June 2026, the Supreme Court (A Reference by the Attorney General for Northern Ireland [2026] UKSC 16) overturned its own 2014 decision in Cheshire West. For more than a decade, whether someone was being deprived of their liberty turned on a single bright-line "acid test": were they under continuous supervision and control, and not free to leave, while lacking the capacity to consent?
The court has now said that test was wrong in principle. In its place is a multifactorial, case-by-case assessment — weighing the type, duration, effects and the way arrangements are actually carried out. The court also restored an important point: a person who lacks mental capacity under the MCA can still give valid consent to their care arrangements. In other words, lacking capacity no longer automatically means a deprivation of liberty.
The practical effect is that fewer situations are likely to count as a deprivation of liberty than under the old test — though every case now turns on its own facts.
Pick your setting for a quick, plain-English steer. The same core principles apply everywhere — keep your MCA practice, keep your safeguards, and review case by case.
The idea of "valid consent" the court has revived is about consent to the confinement (the liberty question under Article 5). It is not a change to how you assess someone's consent to their care and treatment generally — the Mental Capacity Act still governs that. Don't let the two be confused in your team's heads.
Our white paper goes deeper on leading inspection-ready care through CQC's reforms — and the Governance Suite helps you keep your MCA and DoLS records, reviews and reasoning in one place.
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