The Supreme Court’s New Deprivation of Liberty Judgment: What Care Home Providers Need to Know
The Supreme Court has recently delivered what many legal experts are describing as the most significant development in deprivation of liberty law since the landmark Cheshire West judgment in 2014.
For over a decade, care homes, hospitals and local authorities have relied upon the “acid test” established in Cheshire West to determine whether a person who lacks capacity is being deprived of their liberty and therefore requires legal authorisation through the Deprivation of Liberty Safeguards (DoLS).
The latest judgment changes that landscape considerably and is likely to have far-reaching implications for health and social care providers across England and Wales.
A Brief Reminder: What Was the Cheshire West Acid Test?
The Cheshire West judgment introduced a relatively straightforward test for determining whether a person was deprived of their liberty. A deprivation of liberty existed where a person:
- Was under continuous supervision and control; and
- Was not free to leave.
Importantly, factors such as whether the person appeared happy, compliant, settled, or content with their care arrangements were considered irrelevant.
This approach significantly widened the scope of deprivation of liberty, resulting in hundreds of thousands of DoLS applications and an ever-growing backlog of assessments across local authorities.
What Has the Supreme Court Decided?
The Supreme Court has now concluded that the Cheshire West acid test was too rigid and did not adequately reflect the complexities of individual circumstances.
Rather than relying solely on a simple two-part test, the Court has confirmed that professionals must consider the person’s situation in its entirety.
The judgment places greater emphasis on:
- The individual’s wishes and feelings.
- Whether the person appears to accept or consent to their care arrangements.
- The purpose of restrictions.
- The overall context of care and support.
- The proportionality of any restrictions imposed.
In essence, the Court has moved away from a “one size fits all” approach and returned to a more nuanced assessment of liberty.
Why Does This Matter for Care Homes?
This judgment has the potential to significantly reduce the number of situations that legally constitute a deprivation of liberty.
Many residents living in care homes who are settled, content and not objecting to their care arrangements may no longer automatically meet the threshold that previously triggered DoLS authorisation.
However, providers should be cautious not to interpret this as a relaxation of legal responsibilities.
The Mental Capacity Act 2005 remains fully in force, and care providers must continue to ensure that:
- Capacity assessments are completed appropriately.
- Best-interest decisions are robustly documented.
- Restrictions remain necessary and proportionate.
- Human rights are protected.
- Least restrictive practices are always considered.
What Should Care Home Managers Do Now?
1. Continue Current DoLS Processes
At present, most local authorities and legal advisors are recommending that providers continue making DoLS applications in line with existing procedures until national guidance is issued.
This is not the time to stop submitting referrals or reviewing existing authorisations.
2. Strengthen Documentation Around Wishes and Feelings
The judgment places greater weight on the individual’s perspective.
Care homes should ensure records clearly evidence:
- What the person says about their care.
- How they express their preferences.
- Whether they appear content with arrangements.
- Any signs of objection or distress.
- Input from family members and advocates.
Good documentation will be essential in demonstrating that care arrangements are person-centred and lawful.
3. Demonstrate the Least Restrictive Option
Inspectors and legal professionals will increasingly expect providers to show how decisions have been reached.
Managers should ensure care plans and best-interest decisions clearly explain:
- Why restrictions are necessary.
- What alternative approaches were considered.
- Why the chosen option is the least restrictive way of meeting the person’s needs.
4. Remain Alert to Objections
Where a person:
- Regularly asks to leave,
- Expresses a wish to go home,
- Resists care,
- Becomes distressed by restrictions, or
- Actively objects to their arrangements,
formal legal safeguards are still likely to be required.
The presence of objection remains a critical factor in determining whether enhanced legal scrutiny is necessary.
What Will the CQC Expect?
While detailed regulatory guidance is still awaited, providers should expect CQC inspectors to continue focusing on:
- Mental Capacity Act compliance.
- Best-interest decision-making.
- Human rights considerations.
- Person-centred care.
- The use of least restrictive practice.
- How individuals’ views are sought and respected.
The legal test may have evolved, but the principles of good care have not changed.
Looking Ahead
The social care sector is now entering a period of transition while regulators, local authorities and legal professionals interpret the implications of this judgment.
Further guidance is expected from the Department of Health and Social Care, local authorities and sector bodies over the coming months.
For providers, the safest approach is clear:
Continue to follow the Mental Capacity Act, maintain existing DoLS procedures, and focus on robust evidence of the person’s wishes, feelings and the proportionality of any restrictions.
Ultimately, this judgment reinforces something that should already sit at the heart of excellent care: understanding the individual, respecting their rights, and ensuring that any restrictions are truly necessary to keep them safe and well.
Final Thoughts
The Supreme Court’s decision represents a major shift in how deprivation of liberty is understood and assessed. While it may reduce the number of formal authorisations required in the future, it does not diminish the responsibility of care providers to uphold the rights, dignity and autonomy of the people they support.
As always, good Mental Capacity Act practice remains the strongest safeguard for both residents and providers.