Webinar: what the Supreme Court's Deprivation of Liberty judgment means for social care

Purpose: This briefing summarises key points discussed during the SCIE webinar on the Supreme Court judgment concerning deprivation of liberty and its implications for practitioners working within the Mental Capacity Act (MCA) framework. 

The webinar highlighted that the most important message for practitioners is that the Mental Capacity Act remains the foundation for lawful decision-making. The judgment does not change the need for robust assessments of capacity, best interests decision-making, or the requirement for restrictions to be necessary and proportionate. Ben Troke repeatedly emphasised that organisations that get the MCA right are far less likely to encounter difficulties regarding deprivation of liberty.

The webinar explained that deprivation of liberty safeguards exist to provide independent scrutiny of restrictive care arrangements rather than to impose restrictions themselves. Restrictions arise from care planning and best interests decisions under the MCA; deprivation of liberty processes act as a safeguard where those restrictions become particularly intrusive.

A central theme was that the Supreme Court’s June judgment substantially changes the position established by the Cheshire West case. Under Cheshire West, the ‘acid test’ focused on continuous supervision and control and whether a person was free to leave. The Supreme Court has now rejected that approach as too simplistic and has replaced it with a more multifactorial assessment. Practitioners were told that factors such as context, purpose, relative normality, objection and the overall circumstances now have greater relevance.

The webinar stressed that coercion is likely to be a key indicator moving forward. The court indicated that deprivation of liberty involves the state preventing a person from doing what they want to do. Consequently, objection by the person has become highly significant when considering whether arrangements amount to a deprivation of liberty. Participants were advised to pay close attention to signs of objection and to avoid relying solely on apparent compliance.

Significant discussion focused on the concept described in the judgment as ‘incapacitous consent’. The Supreme Court suggested that, for Article 5 purposes, a person who lacks capacity may nevertheless demonstrate acceptance of their situation. Ben Troke expressed strong concern that this concept could create confusion if misunderstood as consent to care or treatment. The webinar emphasised that valid consent to care still requires capacity, and that practitioners should remain grounded in MCA principles.

The speakers acknowledged that the judgment creates substantial uncertainty. Although it appears likely that fewer people will be regarded as deprived of their liberty, there is currently limited guidance on how different factors should be weighed in practice. Organisations were encouraged to recognise this uncertainty openly, apply reasonable professional judgment, audit decision-making and share learning.
 

Ben also highlighted the need to consider other safeguards more carefully, in the absence of the protections of Article 5 – ie use of the Care Act, safeguarding, MCA, and other rights, including especially Article 8 (right to private and family life) 

Practical advice included continuing to make referrals where there may be a deprivation of liberty, documenting reasoning carefully, and ensuring communication with individuals and families is clear. Participants were reminded that a change in the legal definition does not mean restrictions themselves should automatically change. Care plans that are lawful, necessary and proportionate under the MCA may remain unchanged even where arrangements are no longer considered a deprivation of liberty.

The webinar also highlighted the importance of recording evidence of objection, behavioural changes, routines and the impact of restrictions over time. Practitioners were encouraged to build a picture of the person’s experiences rather than relying on a single assessment of whether they appear happy.

In conclusion, the judgment narrows the circumstances in which deprivation of liberty safeguards may apply, with greater emphasis on coercion, objection, context and relative normality. However, the overarching message for practitioners is unchanged: keep the MCA at the centre of decision-making, continue to take a rights-based approach, document professional reasoning clearly, and proceed cautiously while further guidance and case law develop.