DoLS Changes 2026: Practical Guide For Care Providers

The 2026 Supreme Court judgment in AGNI has introduced significant implications for the Deprivation of Liberty Safeguards (DoLS) framework. While the principles of the Mental Capacity Act remain unchanged, care providers will need to take a broader approach when considering whether an application for a DoLS is required. This Q&A addresses some of the key questions arising from the judgment and highlights practical considerations for providers.

What has changed in the Deprivation of Liberty Safeguards (DoLS) framework?

The 2026 Supreme Court judgment known as ‘AGNI’ has introduced the most significant change to DoLS in more than a decade. The previous reliance on the Cheshire West “acid test” is no longer sufficient on its own. Providers must now undertake a holistic, multifactorial assessment of each person’s circumstances when considering if a DoLS application is required.

Does the Cheshire West acid test still apply?

Not as a standalone test. While factors such as continuous supervision and lack of freedom to leave remain relevant, they are no longer automatically determinative of a deprivation of liberty. Providers must assess a wider range of factors, including the person’s wishes, feelings, understanding of the arrangements and acceptance of them are therefore potentially significant considerations, as is consent.

What is the biggest change care providers need to understand?

The biggest change is the focus on consent. A person may be able to give valid consent to their confinement even if they lack capacity under the Mental Capacity Act (MCA) for other decisions. Their wishes and feelings now carry significant legal weight when determining whether a deprivation of liberty exists. Note that ‘valid consent’ does not apply for the purposes of determining whether a person is consenting to their care and treatment.

Can someone with dementia consent to their care home placement?

Potentially, yes. If a resident appears content, engages positively with staff, does not object to living in the home, and shows no attempts to leave, they may be considered to have validly consented to their confinement despite lacking MCA capacity for other decisions.

What factors should providers consider when assessing confinement?

Providers should consider:

• The type of restriction being used.
• The duration and intensity of restrictions.
• The effect of restrictions on the individual.
• The purpose of the restrictions.
• Whether the person objects.
• The normality of the situation.
• The person’s access to family, visitors, and social contact.
• The overall impact of restrictions on the person’s daily life.

What indicates that a DoLS application is still likely to be required?

A DoLS application is likely to be needed where:

• The person repeatedly tries to leave.
• They become distressed about their placement.
• They refuse care because they want to leave.
• They display behaviours that suggest objection to their confinement.
• There is uncertainty about whether they are consenting.

If a resident is compliant, does that automatically mean they consent?

No. Compliance alone does not equal consent. Providers must actively consider and document whether the resident appears genuinely content and accepting of the restrictions in place. A holistic assessment and clear record keeping will be essential.

What should providers do in borderline cases?

The advice is to err on the side of caution and submit a DoLS application if there is doubt. Providers are unlikely to be criticised for making a referral where there is uncertainty. The Supervisory Body remains the decision maker.

What happens to existing DoLS authorisations?

Existing authorisations remain lawful. Providers should review current authorisations as they approach expiry and consider whether the resident would still meet the new threshold. Providers should also consider if any of the urgent authorisations remain appropriate and if necessary request an early review. Local authority reviews may be requested where appropriate.

Are current authorisations now unlawful because of the new judgment?

No. Existing authorisations remain lawful until they are reviewed or expire. Providers should demonstrate they understand the AGNI changes and are taking steps to review authorisations under the new approach.

How should providers document their decision-making?

Providers should clearly record:

• The resident’s wishes and feelings.
• Evidence of contentment or objection.
• Any attempts to leave.
• Why restrictions are proportionate (the purpose of the arrangements).
• How the restrictions are being implemented and the effect it has on the person.
• Any restraint and/or restrictive practices.
• How do their freedoms compare with a similar setting given identified needs.
• The rationale for applying or not applying for DoLS.
• Dates of reviews and reassessments.

What are the legal risks for providers?

Key risks include:

• Failing to identify a deprivation of liberty where one exists.
• Failure to make an application for a DoLS where one has been identified.
• Over-restrictive care practices.
• Insufficient documentation of decisions.
• Failure to review existing authorisations.
• Inadequate staff understanding of the new requirements.

What practical actions should providers take immediately?

Providers should:

• Review policies and procedures.
• Update references to Cheshire West.
• Train staff on the new approach.
• Review current residents and restrictions.
• Strengthen documentation of wishes, feelings, and behaviours.
• Check electronic care record systems can support the revised recording requirements.

Does the actual delivery of care need to change?

No. The underlying principles of the Mental Capacity Act, best-interest decision-making, and safe care delivery remain unchanged. The main change concerns when a DoLS authorisation is required and how the decision to make an application is made, evidenced and recorded.

How will CQC view the changes?

CQC has indicated it will take a pragmatic approach while awaiting further national guidance. However, providers should be able to demonstrate:

• Awareness of the new judgment.
• Steps taken to understand it.
• Reviews underway.
• Policies and procedures being updated.
• Systems/documentation changes to reflect a holistic assessment.
• Staff training plans.

How often should residents be reviewed for potential DoLS requirements?

There is no prescribed timeframe. Reviews should occur whenever circumstances change and as part of regular care planning. A review at least every six months in any event would be good practice where no significant change has occurred. It would be useful to record during this time evidence that consideration has been given to whether a DoLS application is required.

What if a resident’s behaviour fluctuates?

Where a resident is sometimes content but at other times tries to leave or objects to care, the position is likely to be borderline. Providers should document behaviours carefully and consider making a DoLS application due to the uncertainty.

Do family objections automatically mean a DoLS is required?

No. Family views remain important but are not determinative. The key issue is the resident’s current wishes, feelings, and behaviour. Providers should carefully balance family input against the resident’s current presentation.

What about individuals who are physically unable to leave?

A deprivation of liberty may not exist if the person’s inability to leave arises solely from their physical condition rather than restrictions imposed by staff or the service. Each circumstance must still be assessed individually and documented carefully.

What are the key mistakes providers should avoid?

• Continuing to rely solely on the acid test.
• Ignoring or failing to understand the role of consent.
• Failing to record wishes and feelings.
• Assuming compliance means consent.
• Missing signs of objection.
• Poor documentation.
• Not reviewing existing DoLS.
• Using over-restrictive care plans.
• Failing to train staff.
• Not referring borderline cases.

Key message

When assessing whether an application for Deprivation of Liberty is required after the 2026 Supreme Court judgment, providers must move away from a checklist approach and focus on a holistic assessment of the person’s confinement, consent, wishes, feelings, and lived experience. Where there is uncertainty, make the referral and document your rationale.