Landmark ruling affects Deprivation of Liberty Safeguards
The Supreme Court has unanimously overturned the long-standing Cheshire West 'acid test', which since 2014 had held that a person was deprived of their liberty if they were under continuous supervision, not free to leave, and unable to consent — regardless of the care setting. In its place, the Court has reinstated a more complex, context-sensitive approach aligned with Strasbourg, requiring decision-makers to weigh a range of factors holistically: the type, duration, and purpose of care; whether the person appears to comply or express contentment; the normality of the setting (with home-based restrictions less likely to cross the threshold than those in formal settings); and whether the person's own condition, rather than external constraint, limits their freedom of movement.
For care providers, the practical implications could be considerable. While the ruling may reduce the overall volume of Deprivation of Liberty Safeguards applications — welcome news for overstretched local authorities and courts — it removes the clarity that the acid test provided. Providers must now make nuanced, multi-factorial judgments about whether care arrangements cross the line from restriction to deprivation, with greater weight placed on recording individuals' wishes and feelings as part of a legal assessment of consent. Responsibility could shift from local authorities onto providers, increasing exposure to complaints and challenges, and that some of the most vulnerable individuals may fall outside the protective framework altogether. Until further guidance and test cases emerge, providers should continue well-reasoned existing arrangements and ensure they carefully evidence their decision-making.
We are working to clarify how this applies to homecare specifically, to update our mental capacity guidance, and to call on the government to produce clear guidance for care providers. We will provide members with an update when we know more.