In this piece Gail Petty, NDTi’s Advocacy Lead, presents a personal and critical reflection on the 2 June 2026 Supreme Court ruling regarding the deprivation of liberty, setting out how it undermines the rights, voices, and safeguards of many individuals in social care.
Summary of key messages
- Undermining the Mental Capacity Act (MCA):
That the ruling weakens the MCA by devaluing the concepts of capacity and consent. Specifically, it introduces the deeply concerning idea of valid consent from incapacitated individuals (tacit consent), which could lead to unsafe, arbitrary judgments. - Abolition of the ‘acid test’:
The ruling removes the straightforward “Acid Test” established in the Cheshire West case, which provided a clear definition for deprivation of liberty. In its place is a nebulous, subjective framework that will be difficult for overstretched social care practitioners to apply to hundreds of thousands of cases. - Loss of vital safeguards:
By narrowing the definition of who is considered “deprived of liberty,” the ruling will likely result in fewer people having access to safeguards like independent oversight, the Court of Protection, and legal aid, even if their actual living restrictions remain unchanged. - The threat to independent advocacy:
Advocacy is an essential safeguard that keeps people safe from neglect and mistreatment. The ruling risks removing access to independent representation for those no longer classified as deprived of liberty, further weakening a sector that is already “chronically underfunded”. - Relative normality:
Gail begins to explore the concept of “relative normality” used in the ruling, arguing that life in a care setting, with its inherent power imbalances, locked doors, and lack of personal choice, is never ‘normal’ and represents a “traumatic loss of adulthood and autonomy”. - A cost-saving risk:
The ruling may be a cost-saving exercise for a social care system at its breaking point, effectively “safeguarding” state agencies rather than the individuals they serve. - Call for consultation and guidance:
Urgent, relatable guidance is needed and people, their families, and advocates must be central to the drafting of any new regulations to ensure the system works for, and not against, individuals.
Like many of you I have spent the last couple of days trying to get my head around the Supreme Court ruling that was shared on Tuesday 2 June. I haven’t got there yet, but here, I share my immediate personal thoughts and reflections as someone who has worked in social care and independent advocacy the best part of the last 30 years. These are initial thoughts and they may change as we gain clarity and move through what is likely to be a turbulent time ahead.
I won’t pretend that I’ve got to a point where I understand the legal nuance and technicalities, but I’m hugely grateful to our legal colleagues at Doughty Street, 39 Essex et al for providing timely and helpful explainers.
I’ve moved through a range of emotions, reactions, rationale and thinking over the last couple of days. I keep coming back to the people I’ve supported, stood alongside and advocated for and to the people I talk to advocates about, who they are currently standing alongside and representing.
“This ruling does nothing to further those people’s rights to live good ordinary lives with minimal restrictions, with autonomy, choice and control and robust access to human rights.”
It undermines people’s rights and their voice. It undermines the Mental Capacity Act and people’s rights to supported and substituted decision making. It undermines the notion of capacity and of consent. It seems like it will reduce access to vital safeguards. And without great care and considered implementation, it will undermine people’s rights to independent representation and routes to easily challenge decisions about where and how they are cared for and supported via access to the Court of Protection.
Colleagues I’ve spoken to in the advocacy sector are, like the rest of us, still processing the ruling. But there will be hundreds of Relevant Person’s Representatives (RPRs) wondering about the people they support, thinking about the relationships they have built with them and the issues they have raised on their behalf and I’m sure they will also be thinking about the security of their own jobs.
I’ve worked in advocacy long enough to remember advocacy before statutory advocacy and Independent Mental Capacity Advocacy (IMCA) was a thing, and long enough to remember working with colleagues to influence the development of the Mental Capacity Act 2005. I was an advocate for many people with a learning disability in a number of long stay hospitals. The majority of those people didn’t use words to tell me what was important to them or how they wanted to live their lives and be supported. The majority of those people would be considered to lack the mental capacity to make decisions in most areas of their lives and would certainly meet the ‘Acid Test’ for deprivation of liberty set out by Lady Hale. Not many of those people were ‘actively objecting’ to living in highly restrictive institutionalised settings. Many of them may even have appeared content or happy at times. They’d lived there most of their lives and it was just how it was. People couldn’t make choices and didn’t have a say in their care and had learnt to just get on with it.
We know that those settings did great harm, caused irrevocable damage and trauma and none of us ever want to see another time when the warehousing of human beings is normalised.
But my points here are twofold:
- The first is that every single one of those people, that I knew of and can recall supporting, went on to thrive and live ‘good ordinary lives’ in less institutionalised settings, receiving more personalised care and support in smaller, less restrictive environments. Independent advocacy was a key part of achieving that; independent support and representation to help ensure the person’s care worked for them, to keep their ‘voice’, views wishes and preferences central to decisions about them alongside the independent oversight and scrutiny that advocacy provided was an inherent safeguard in closed care settings.
- Through supporting the development of the Mental Capacity Act, we fought hard to get rid of the idea that implied or ‘tacit’ consent equalled consent. Tacit consent is a slippery slope to nowhere good. Put painfully bluntly, you either have capacity to consent or make a decision about something, or you don’t.
The 2-stage capacity test of the Mental Capacity Act gives us a beautiful, straightforward framework to establish this. This is not to undermine people’s voice, views, wishes and preferences; quite the opposite – these, of course are central. People’s views and preferences are vitally important in shaping where and how people should live and be supported.
But in my thinking, without capacity to understand the decision being made, they are views, wishes and preferences (which must be respected and responded to) and they are not providing consent. This is what ensures people’s rights to structured, substituted decision making, that insists on the Best Interest checklist being applied, to ensure that decisions made really are in a person’s best interest whenever they lack capacity to make that decision themselves.
People’s views, wishes and preferences enable a decision maker to be more assured that the decision they are making is the right one for the person.
How suddenly one decision, arguably one of the biggest decisions any of us might make, is exempt from that framework is baffling me as I wade through the ruling. As far as I understand, every other ‘exempt’ decision is exempt because there is another existing legal framework providing a structure for that decision to be made. With the Supreme Court ruling we seem to be left with one huge rogue decision and without an easily applied framework to navigate it.
We seem to now have nebulous, multifactorial, subjective decision making that leaves us uncertain about whether or not someone is deprived of their liberty and uncertain about whether or not they are consenting. My worry is this could lead to even more burdensome bureaucratic processes with even slower systems, arbitrary and unsafe judgements where the person gets lost.
Abolishing the acid test
The new ruling abolishes the ‘acid test’ established in the Cheshire West ruling, and which provided us all with an easy to interpret, easy to apply definition of deprivation of liberty. Now, stretched and under resourced social care practitioners will need to consider a much wider range of increasingly nuanced factors which may or may not indicate a deprivation. What concerns me is that whilst we know the current Deprivation of Liberty Safeguards (DoLS) system is broken, it is a system with a straightforward and structured framework that is still applied incorrectly at an alarming frequency.
Many health and social care professionals are still developing their understanding of the Mental Capacity Act after 20 years of its existence. That isn’t a criticism, professionals are overwhelmingly busy, carry huge caseloads and are often not taught the legislation and how it should be applied in their training. But how are they going to navigate consideration of the 400,000 people currently subject to a Deprivation of Liberty Safeguard? It is going to take an enormous amount of work and effort. And what about the people still in the ‘backlog’ whose cases and deprivations are yet to be authorised?
Even with the routes to challenge, access to the Court of Protection and the acid test, restrictions are often such that people’s liberty and quality of life is negatively and traumatically impacted. The Supreme Court ruling will lead to far fewer people being classified as being deprived of their liberty, yet those people’s circumstances will not have changed on 2nd June 2026. The restrictions people face will be the same, they just may not have access to the same safeguards and independent oversight that they had previously.
Every week I review anonymised case files from advocates working across England and Wales and every week I see instances where the Relevant Person’s Representative (RPR), the independent person you get to support you when you’re deprived of your liberty in a care home or hospital, has identified a ‘condition’ of the DoLS that hasn’t been met, medication that wasn’t given, dietary preferences that weren’t respected, access to worship or visits out and about that didn’t happen and of course safeguarding concerns, instances of poor care, neglect or mistreatment. It is those independent advocates and RPRs that are picking up these issues on people’s behalf and ensuring they are addressed. They are keeping people safe. Some may argue that isn’t the role of the RPR, regardless, it is an essential part of what they do that won’t be picked up by anyone else unless we design it that way.
It is already incredibly difficult to challenge and ‘get out’ of a care setting you might find yourself in, for example, after a fall or a urinary tract infection, or even just not liking the residential home where you are after a while. Things change, staff come and go, when once you were happy and therefore under the new rules, ‘consenting’, now you might not be. How will you access the support you need to challenge that?
The risk is, unless we plan carefully and ensure alternative arrangements are in place, if you aren’t considered to be deprived of your liberty, your access to that independent representation vanishes. As does your right to legal aid to appeal and access to The Court of Protection. It appears this will now be means tested and gaining access to the Court of Protection will be even harder.
If I were cynical, I might suggest this were a cost saving exercise.
We know our social care system is stretched to breaking point.
“In 30 years in this sector, I have never known the system to be operating as precariously and as harshly as it is now.”
Now is not the time to roll back independent support, oversight and scrutiny, it is absolutely the time to more robustly invest in independent advocacy and ensure this change doesn’t impact people’s safety and wellbeing. We know all too well the terrible atrocities that happen when we look the other way.
Uncapacious/Incapacitated (valid?) consent
I touched on this early, but to me, this is deeply concerning as a concept and runs the risk of setting a dangerous precedent. Whilst my understanding of the ruling is that this exception to the application of the MCA and how one might consent to something is confined to just the scenario of deprivation of liberty, I can see that in practice, this is going to be a difficult concept to understand, manage and implement (again, if I were cynical…).
If ‘tacit consent’ can apply to something as significant as being deprived of your liberty, then surely it can apply in other scenarios too? We will need to invest in significant training for thousands of social care professionals to support them to navigate these changes and to learn how to apply the more complex multifactorial legal standards to establish deprivation of liberty, and ensure that ‘tacit’ consent is not being applied elsewhere. And we need that yesterday as we have no guidance on implementation from the Supreme Court. The Department of Health has said they will be issuing guidance to the sector ‘shortly’. I look forward to contributing to consultations on the guidance along with people, their families and my colleagues in the advocacy sector.
The aspiration of the Mental Capacity Act (MCA) and its five principles was to be an empowering piece of legislation. Enshrining people’s right to be central and heard in decisions about themselves and to both supported and substituted decision making.
Too often we see that the MCA is applied incorrectly and people don’t get the support they are entitled to in terms of support to understand and make their own decisions (principle 2). The MCA and its 2-stage test provide us a clear framework of understanding someone’s ability to understand and consent to a whole range of decisions, not least their care and support arrangements
Through our work with advocacy providers, we hear about situations where people get stuck in care settings that they never wanted to be in, sometimes for years…
“At some point people give up shouting about it, give up packing their bag and standing by the front door, give up asking to go home, give up asking about their neighbours, their cat, and slowly become voiceless, powerless and compliant. Is that them now consenting?”
Or is it learned compliance? Is learned compliance an indicator of system failure? Maybe it’s an indicator of the system doing exactly what it sets out to do?
I may have been less concerned if we weren’t suggesting valid ‘consent.’ If the Supreme Court had said that someone expressing views and wishes of satisfaction and contentment with their care arrangement was enough for us to consider that they aren’t deprived of the liberty, then that would be different. The person still wouldn’t be consenting, they would be expressing a recognised and agreed on preference. But to me, consent is something else entirely.
Relative normality
I feel I have gone on long enough already. And the concept of ‘relative normality’ is a huge one that may warrant a separate thought piece of its own. I am still making my way through the ruling in this regard.
But I cannot help but feel we’re regressing to a point where the Disability Rights Movement, where de-institutionalisation, Valuing People, Direct Payments, Personalisation, Personal Budgets, Human Rights etc. have been forgotten. Where it is suddenly ok to hold different standards of ‘normality’ for people who are different to us. Where othering people is suddenly the norm again.
Life in a care setting can never truly feel “normal,” as it involves unavoidable restrictions and an imbalance of power, even in the most supportive environments. Everyday routines—when to eat, sleep, bathe, or go outside—are often decided by someone else, and personal preferences or independence can be lost, replaced by monitoring, locked spaces, and set schedules. Moving into care is a profound and often frightening transition, where an autonomous life is suddenly reshaped into one defined by systems and shared routines. While such conditions may become accepted as standard practice, they can reflect a deeper loss of adulthood and autonomy rather than anything genuinely normal.
And then there’s advocacy
Independent advocacy is a fundamental element of our social care landscape and a safeguard for people who draw on health and social care. It provides independent support and representation to enable people to have their voice, views, wishes and preference heard and to have their rights upheld. Advocates support and enable people to be a part of decisions about them and to challenge when needed. They support people to access services they need, support equality, inclusion and social justice.
The advocacy sector is facing its own crisis. It is chronically underfunded. In many instances, commissioners have stripped back contracts to the absolute minimum and advocacy services are carrying waiting lists for statutory advocacy; advocacy that people have a legal right to. One meeting or ward round or care review is now increasingly becoming ‘an issue’ and advocacy services are at times ‘closing someone’s case’ sooner than person might want or need. Advocacy is becoming system led over being people led and that is primarily resource driven.
“We are already seeing people’s access to independent advocacy representation weakened and diminished.”
Services are being rationed and statutory safeguards are becoming illusory. The Whorlton Hall SAR said it clearly, ‘There is an illusion of advocacy provision’ and with that comes a risk that people think there are enough independent checks and balances and support for people. We need to take this opportunity to ensure people’s access to advocacy isn’t weakened further as the changes caused by the ruling are implemented. People’s RPR’s will need a different way of providing that independent support and representation.
To conclude
We know the system is broken. This ruling may have just broken it further. And if it is just because of technicalities in legislation then we need to create legislation and guidance that continues to ensure people have appropriate independent support and representation. Human Rights and the value of each person’s voice must be our compass as we navigate our way forward. We need to ensure checks and balances and easy routes to challenge are there for people before we dismantle the system that exists now.
“People, their families, advocacy providers, local authorities, care providers and health professionals need urgent guidance and people, their families and advocacy providers must be consulted in the drafting of that new guidance.”
When I was an advocate, and subsequently, I had the privilege to know and work alongside Graham Enderby. Many of you will know that Graham, his wife Wendy and HL who lived with them, paved the way to today. Last night I spent some time thinking about what Graham would think of all this. I went back and read the written evidence that he and Wendy submitted in relation to Mental Capacity Act (Amendment) Bill back in January 2019. These paragraphs stood out to me and could apply as equally now as they did then;
“Our ‘acid test’ is: – If HL v Bournewood happened today under these proposals would he be any better protected than in 1997 or under DoLs? Given the attitude of the professionals employed by the hospital / managing authority at the time, the MCA amendment Bill places more control in the hands of those professionals and less consideration of HL and those that were trying to get him out. It is then as it stands a monumental fail in its current form.
The current system is about Safeguards for people deprived of their Liberty. The new proposals remove all those safeguards a person has and in effect ‘safeguards’ the state agencies rather than the person. This is completely unacceptable and must not be allowed to happen. It is imperative the government get it right this time.”
As we move forward, we need to keep people, their voices, rights and safeguards close. We need guidance to be relatable to actual people and their actual circumstances. We need people like Graham and Wendy and HL on our shoulders. We need families and advocates to be listened to, and we need to insist on robust, clear and easy routes for people to access independent advocacy and the Court of Protection…
