Why the person’s voice matters more than ever.
The Supreme Court’s 2026 judgment on deprivation of liberty is one of the most significant developments in mental capacity and safeguarding practice since the landmark Cheshire West ruling in 2014. The judgment moves practitioners towards a more nuanced, person-centred assessment of an individual’s circumstances.
While much of the discussion has understandably focused on legal and operational implications, there is a much bigger safeguarding question sitting underneath these developments:
How do we ensure that people do not get lost in the process?
A Legal Change – But Also a Practice Challenge
The Supreme Court concluded that deprivation of liberty can no longer be determined through a single test. Instead, practitioners must consider multiple factors, including:
- The nature of restrictions
- Their impact
- Whether the person objects
- How the individual experiences the arrangements
Importantly, the judgment also recognised that a person who lacks legal capacity to consent to care and their living arrangements may still be able to communicate valid acceptance of their arrangements, provided they have a basic level of understanding and can express that they are content. At the same time, the Court made clear that we should not assume there is valid consent where there is serious doubt.
For providers, this introduces both opportunity and uncertainty.
Following the judgement, Care England produced some guidance which reminds us that the practical safeguarding process itself has not disappeared. Care homes still identify concerns. They must continue to apply Mental Capacity Act principles, and they still have to request DoLS authorisations where appropriate. They also have to involve the Court of Protection in disputes and complex cases.
Don’t Lose the Fundamentals
Above all, this judgment highlights the importance of doing the basics well.
The Mental Capacity Act remains the everyday legal framework for decision-making. Capacity assessments, best-interest decisions, least restrictive options, and clear recording remain essential.
Yet many of us will recognise a long-standing challenge within safeguarding and social care. Staff may know the legislation. They may know the language. They may even be able to recite the five principles of the Mental Capacity Act. But applying those principles in practice is often where competence and confidence begins to fade.
This judgment feels challenging partly because it asks practitioners to go beyond following a checklist. Instead, it asks them to understand the person at the centre of the decision.
Compliance Is Not Consent
One of the most important messages in the new DHSC guidance is that we should not automatically interpret compliance as consent. Practitioners should move away from asking whether somebody appears settled. Instead, they should ask:
‘How do we know what this individual actually understands and wants?’
Operational guidance for providers echoes this. It cautions against assuming that a person who appears “happy”, “settled”, or “not objecting” is necessarily giving valid consent. Instead, practitioners must carefully gather evidence, and consider things on a case-by-case basis.
For safeguarding practitioners, this is a critical distinction.
A person may appear compliant for a number of reasons:
- They are frightened
- They lack confidence
- They are heavily reliant on others
- They are affected by medication
- They simply feel unable to communicate dissatisfaction.
Understanding a person’s wishes and feelings therefore requires more than simply observing their current state. It requires curiosity, patience, and meaningful engagement.
The Person Must Remain Visible
During safeguarding reviews, best-interest meetings, and mental capacity assessments, it can sometimes become difficult to see the individual amongst the paperwork.
Yet the person is the reason the process exists in the first place.
An important message to families is that the person remains central to the process. Practitioners should continue to focus on the individual’s wishes, feelings, communication, and behaviour, even where they lack capacity for the decision being considered. Families have a role to play in this, and their involvement is crucial in providing valuable insight.
This may involve understanding:
- How the person communicates agreement or distress.
- What they have previously expressed about where and how they wish to live.
- Whether they attempt to leave.
- Whether they resist or accept support.
- What helps them feel safe, listened to, and respected.
Safety and Rights Must Sit Together
One of the recurring tensions in safeguarding is the balance between protection and liberty.
Practitioners naturally want to keep people safe. Families want reassurance that loved ones are protected. Providers want to minimise risk.
However, safeguarding has never been solely about protection. It is equally about rights, dignity, autonomy, empowerment, and proportionality.
The Mental Capacity Act requires us to seek the least restrictive option. The latest guidance also emphasises the importance of considering whether restrictions remain necessary and proportionate.
The judgment offers an important reminder that restrictions should not simply be accepted because they are well intentioned.
The key question is not:
‘How do we keep this person safe?’
Instead, we should ask:
‘How do we support this person safely while respecting their rights and wishes?’
Families and Advocacy Matter More Than Ever
Families, representatives, and advocates are often the people who know an individual best.
The post-judgment guidance encourages providers to gather evidence from those who know the person’s history, communication style, preferences and values. Families can often identify signs of distress, anxiety or objection that professionals may not immediately recognise.
The DHSC has also emphasised the continuing role of advocacy and representation during this period of adjustment.
Good safeguarding is rarely achieved in isolation. Understanding a person’s wishes often requires collaboration with those around them.
What Does Good Practice Look Like?
As organisations adapt to the new legal landscape, the message from regulators and guidance documents is consistent:
- Don’t panic.
- Don’t make blanket decisions.
- Don’t automatically cancel existing authorisations.
- Continue to use MCA principles.
- Continue to apply for DoLS where appropriate.
- Review cases individually.
- Keep clear records.
- Focus on the person’s experience
The Care Quality Commission has signalled that it expects evidence of careful case-by-case thinking, person-centred approaches to gathering views, and ongoing compliance with Mental Capacity Act duties.
Final Reflection
The Supreme Court’s judgment may ultimately reduce the number of situations that fall within formal deprivation of liberty processes.
But perhaps its most lasting impact will be elsewhere.
It invites us to step away from rigid tests and return to the purpose of safeguarding itself:
- To listen more carefully.
- To understand people more fully.
- To see beyond compliance.
- To remember that supporting people is more important than managing systems.
Whether we are discussing mental capacity, deprivation of liberty, advocacy, or safeguarding, the most important question remains the same:
Can we clearly see the person behind the process?