Key Takeaways from DHSC guidance published 15 June 2026

On 15 June 2026, the Department of Health and Social Care (“DHSC”) published initial guidance following the UK Supreme Court’s 2026 judgment on what constitutes an Article 5 of the European Convention on Human Rights (“ECHR”) deprivation of liberty (“DoL”). We set out the key takeaways from the guidance below:

Structure of the Test

• In simple terms, the guidance suggests the structure of the test for determining whether there is an Article 5 DoL is as follows:

1. 1. Conduct a multifactorial assessment to determine whether there is an objective DoL:
      
      1. Is there an element of restriction being imposed on the person against their will?
   2. Consider if P is providing “valid consent”?

We will publish a more detailed article expanding on this shortly.

Action Points

• All organisations to continue to use the DoLS (urgent and standard authorisation) processes and court applications where there is any doubt as to whether arrangements constitute an Article 5 DoL. 
• Providers and commissioners should expedite plans to:
  
  • Disseminate the changes in the law throughout their organisations; 
  • Upskill their workforce on the new definition of an Article 5 DoL; and
  • Initially review, and update organisation-specific operational products (policies, protocols, websites and public-facing leaflets) to ensure they reflect the changes to the law.
• For DoLS (urgent and standard authorisations):- 
  
  • Local authorities should make and document plans for how they will prioritise reviews, assessments of expiring authorisations and new referrals. 
  • Local authorities should clearly record decision-making on existing authorisations, particularly where authorisation are left to lapse if the arrangements no longer amount to an Article 5 DoL.
• Organisations need to give careful thought about how they will ensure that they continue to meet their duties and deliver safeguards under the following areas absent a DoLS or Court of Protection regime:
  • the MCA 2005 – how are you assured that there is a sufficient capacity assessment and fully consulted and constituted best interest decision for a person’s care arrangements? That the care arrangements remain necessary, proportionate and least restrictive alternative?
  • the Care Act 2014 – how are you assured that all of your duties under the Care Act are being met? This includes P’s access to independent advocacy and an appointed RPR where applicable.
  • common law duties of care
  • safeguarding duties
  • commissioner duties – how are you assured that the providers that you commission are complying with all of the above duties?

Further Guidance 

• DHSC will publish additional interim guidance with practical case studies, but no timeframe for this is provided.
• NHS England will be publishing an updated DoLS e-learning module by 30 July 2026.
• The guidance reminds practitioners that the DOLS Code of Practice was published pre Cheshire West and maybe a helpful starting point (whilst noting it does not fully reflect the recent Supreme Court decision)

For a detailed overview of the AGNI judgment and its implications please see our recent webinar and article. 

We will be providing further updates and more detailed analysis on the impact of the judgment. If you would like to sign up for these updates please register here.

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