A Major Shift in Social Care Law

Every so often, a legal judgment comes along that fundamentally changes the way we work in social care. The recent UK Supreme Court judgment on Deprivation of Liberty is one of those moments. I say a moment, but it was a huge shift that changed the legal framework that providers have relied upon for more than a decade and, as a result, organisations need to review not only their policies, but also how they assess, record and evidence restrictions placed on the people they support.

Moving Beyond the Cheshire West "Acid Test"

For many providers, the Cheshire West acid test has become second nature. Continuous supervision and control, alongside people not being free to leave, has underpinned training, governance, inspections and day-to-day practice for years. The Supreme Court has now made it clear that this approach is no longer the correct legal test.

Instead of relying on a single definition, the Court expects decisions to be based on a wider assessment of the individual's circumstances. In my opinion it is a far more person-centred approach and listening to feedback from other professionals, one that better reflects the principles of the Mental Capacity Act. However, it also means providers will need to demonstrate much stronger professional judgement when making decisions.

Rethinking Consent and Documentation

One aspect of the judgment that I believe deserves particular attention is consent.

Historically, there has often been an assumption that if somebody lacks capacity for a particular decision, they cannot meaningfully consent to their care arrangements. The Supreme Court has challenged that assumption and the judgment recognises that an individual may still demonstrate acceptance of their care and express contentment with their situation, even where they lack capacity for specific decisions.

In many ways, this increases the importance of carrying out Mental Capacity Assessments and providers must now be able to evidence how they reached their conclusions, what the person understood, how they communicated their wishes and whether there was any indication that they objected to the arrangements in place.

Documentation will become increasingly important, not because inspectors want more paperwork, but because good records demonstrate good decision-making. As a provider, you really need to begin to think about how your documentation supports evidence and whether the digital tools you are using are up to date enough to support this.

Maintaining Responsibilities, Regulation, and Governance

I have already seen some people suggest that this judgment will reduce the administrative burden because fewer people may meet the legal definition of a deprivation of liberty, but I think that misses the point entirely. The threshold may have changed, but our responsibilities have not. Providers are still expected to complete high-quality Mental Capacity Assessments, make lawful Best Interest decisions, review restrictions regularly, involve advocates where appropriate and ensure care remains the least restrictive option available. None of those duties have disappeared.

If anything, the expectation is that providers will think more critically about every restriction they put in place and be able to justify why it is necessary.

We often speak about Regulation, and this judgment reinforces the importance of Regulation 11. Consent has always been central to delivering safe and lawful care, but this decision places it firmly at the heart of deprivation of liberty considerations. Providers should be reviewing how consent is recorded, how objections are identified and how decisions are evidenced throughout the person's care journey.

This is also the right time to review governance arrangements. Policies written around the Cheshire West acid test will almost certainly need updating. Audit tools, internal quality assurance processes and staff training should all be reviewed to ensure they reflect the current legal position rather than the previous one.

Proactive Support from OpenDoc

Waiting for further guidance is unlikely to be a sensible approach. The judgment has already taken effect, and providers should be responding now.

At OpenDoc, that's exactly what we've done.

As soon as the judgment was published, our legal, safeguarding and governance experts began a complete review of our Deprivation of Liberty policy. We haven't simply amended a few paragraphs, we've rewritten it to reflect the new legal position, ensuring providers have access to guidance that is accurate, practical and inspection-ready.

OpenDoc was created to help providers navigate changes like this. Social care is constantly evolving, and organisations shouldn't have to spend weeks interpreting complex legal judgments before they can update their governance.

This judgment represents one of the biggest legal changes to deprivation of liberty in recent years. The providers who respond early, review their practice and invest in supporting their teams will be in the strongest position to demonstrate safe, lawful and person-centred care.

The law has changed, and it is now it's our responsibility to make sure our practice changes with it.

Practical Steps for Providers

So, what should providers do now?

Review your Deprivation of Liberty, Mental Capacity and Consent policies to ensure they reflect the Supreme Court judgment rather than the Cheshire West acid test. Remember, OpenDoc has already done this leg work for you!

Access OpenDoc’s free Deprivation of Liberty Policy here

Audit current care plans for people who have restrictions in place and ask whether those restrictions remain necessary, proportionate and clearly evidenced.

Review how your organisation records consent, objections and best interest decisions

Make sure Mental Capacity Assessments are decision-specific and robust.

Begin planning staff training

Listen to the latest Care Intelligence Revolution Podcast, that breaks down the key changes and further steps you can take to ensure you are compliant.

Remember, this is a change in law and not something that can wait until the next inspection, it needs to become part of everyday practice and the CQC are already inspecting on this.

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