On Tuesday 2 June 2026, the UK Supreme Court changed how the right to liberty works in the UK, with significant implications for disabled people, their families, and public authorities in health and social care.
At BIHR, we are taking time to analyse this important judgment, and want to share some key changes and initial reflections from a human rights perspective.
Our key message at this stage is simple: our Human Rights Act (HRA) remains fully in force. Public authorities and those delivering public functions must continue to respect, protect and fulfil people's human rights in their decision-making and practice, now and as future guidance emerges.
What was the judgment about?
The right to liberty is protected by Article 5 of the European Convention on Human Rights (ECHR), brought into UK law by our HRA. This says that nobody should be deprived of their liberty without a lawful process, and anyone who is arrested or detained should be able to appeal against the decision.
In 2014, the Supreme Court established an ‘acid test’ to define a deprivation of liberty in a case known as Cheshire West. This said a person who lacks capacity to make decisions about their accommodation and care, is subject to continuous supervision and control, and is not free to leave, is deprived of their liberty requiring lawful authorisation. This led to a surge in Deprivation of Liberty Safeguards (DoLS) applications, because it recognised many more people as being deprived of their liberty, even where restrictions were seen as beneficial and comfortable for the person.
Over ten years later, the Supreme Court has revisited this issue in its latest ruling: ‘A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998’, widely referred to as AGNI. The court concluded that the approach in Cheshire West was wrong and should no longer be followed.
What did the Supreme Court change?
The Supreme Court said the Cheshire West ‘acid test’ was too broad and looked back to how decisions are made in the European Court of Human Rights for guidance on how the law should apply.
The Supreme Court concluded that:
Deprivation of liberty must now be assessed by considering multiple factors, rather than a strict ‘acid test’.
This assessment must focus on the person’s specific situation, considering the type, duration, effects, and manner in which restrictions are implemented.
People who lack capacity to make decisions about their accommodation and care can still give ‘valid consent’ to their confinement if they are aware of their situation and can express whether they are happy or unhappy with them. If there is serious doubt about the person’s views, no conclusion of valid consent can be made.
Other factors must now be considered, including whether the person is objecting to their living arrangements, the ‘relative normality’ of the arrangements, and their purpose.
Why does the ruling matter for human rights?
Limiting liberty safeguards
The judgment limits the UK’s legal definition of a deprivation of liberty under the ECHR/HRA, meaning fewer people will benefit from the safeguards that come with this, including independent reviews, advocacy, and access to the courts with non-means-tested legal aid.
The ruling risks creating a safeguards gap. Automatic DoLS referrals will no longer be required for many people who lack capacity to decide about their accommodation and care, potentially reducing oversight of restrictive care arrangements. Without stronger rights-based practice and effective alternative safeguards, this could increase the risk that abuse and neglect will go undetected in care settings.
Focusing on the individual
The Supreme Court has departed from Cheshire West’s universal approach, returning to a holistic, case-by-case assessment that considers the person’s circumstances, wishes, and the purpose of restrictions.
This should not lead to the normalisation of highly restrictive care arrangements for disabled people, where proper scrutiny is not given simply because someone’s life appears ‘relatively normal’ or restrictions are viewed as beneficial.
A more individualised approach creates both opportunities and risks. The right to private life (Article 8, HRA) protects our autonomy and people’s views should not be ignored because they lack capacity to make certain decisions. However, a new approach will require clear guidance to ensure consistent and rights-respecting decision-making.
Rights-based implementation
The ruling highlights the practical consequences of Cheshire West, which contributed to a significant increase in DoLS referrals, leading to backlogs and long waiting times. Narrowing the scope of the right to liberty may reduce pressure on the system and allow safeguards to be focused on people living in the most restrictive situations.
However, uncertainty remains about how the judgment will work in practice, and there are concerns that people living in restrictive settings will be left in vulnerable situations without review. The Supreme Court points to alternative safeguards, including the Mental Capacity Act principles, social care reviews, safeguarding duties, and welfare issues raised under Article 8 HRA, however these must be accessible and effective. Public authorities need sufficient support and resources to ensure that the human rights of people who lack capacity to make decisions about their accommodation and care are respected, protected and fulfilled.
What's next?
The judgment has changed the law, but this should not lead to a knee-jerk response. Crucially, the legal duties on public bodies to respect, protect, and fulfil human rights have not changed, and must continue to be met.
The UK Government’s Department for Health & Social Care published guidance about AGNI on 15 June, with plans to produce further guidance with stakeholders and charities. A government consultation on the Liberty Protection Safeguards is expected in 2026. BIHR welcomes the opportunity to engage with the Government on how the Supreme Court judgment can be implemented in a human rights-respecting way.
BIHR will be working with our RITES Committee and partners to understand the implications of this important legal development to decide on our actions going forward. We plan to share information and analysis of this case and its implications through a series of blogs, explainers and online events over the coming weeks and months, and we will be sharing updates on our social media and through our monthly eNews.