A Major Change to Deprivation of Liberty: What It Means for Disabled People

A recent UK Supreme Court judgment has brought in one of the biggest changes to disabled people’s rights in a generation. This decision affects how we understand deprivation of liberty and, crucially, who is protected by legal safeguards. 

We want to break this down so you can understand what’s changed and why it matters. 

What has changed? 

Since 2014, the “Cheshire West acid test” has been used to decide if someone is being deprived of their liberty. It asked two questions: 

• Is the person under continuous supervision and control? 

• Are they free to leave? 

If the answer was yes to both, the person was considered deprived of their liberty. This meant they were entitled to important legal safeguards under the Deprivation of Liberty Safeguards (DoLS) framework – designed to protect people from abuse, neglect, or inappropriate restrictions. 

The Supreme Court decision 

The Supreme Court has now overturned that approach. 

Instead of the acid test, a new “multifactorial” test will be used. This looks at: 

• The purpose of the person’s care or living arrangements 

• The wider circumstances around those arrangements 

• The person’s wishes and feelings 

This means decisions will no longer rely on a clear, simple rule, but on a broader and more subjective assessment. 

A key concern: “incapacitous consent” 

One of the most significant and concerning changes is the introduction of what’s being called “incapacitous consent.” 

In simple terms, this means: 

If a person appears to be content with where they live or how they are cared for, they may be treated as having consented – even if they do not have the mental capacity to make that decision. 

This raises serious questions. 

People who lack capacity may no longer automatically qualify for legal protections, even if they are under close supervision and unable to leave. 

What protections could be lost? 

If a situation is no longer classed as a deprivation of liberty, important safeguards may not apply. This includes: 

• The right to a Relevant Person’s Representative (RPR) 

• The ability to challenge arrangements in the Court of Protection 

• Access to non-means-tested legal aid 

These safeguards exist to make sure people’s rights are upheld and their care arrangements are fair and appropriate. 

Without them, there is a real risk that some people could be left without meaningful oversight or protection. 

Why this matters 

The disability rights community has described this decision as: 

“The biggest rollback of disability rights in a generation.” 

There are also concerns about how this decision was made: 

• There was no full appeal case 

• No detailed evidence about an individual situation 

• No public consultation with disabled people or families 

• No impact assessment or parliamentary scrutiny 

That means a major shift in rights has happened without the usual checks and balances. 

What happens next? 

Right now, there are more questions than answers. 

We expect: 

• Updated DoLS forms 

• A revised Code of Practice for the Mental Capacity Act 

• Guidance from the Department of Health and Social Care and Ministry of Justice 

But at this stage, it’s unclear how the changes will work in practice, especially for people with existing DoLS authorisations. 

What should you do now? 

For the time being: 

• Be aware of the new criteria and how decisions may change 

• Keep a focus on rights, voice, and safeguarding 

At Advocacy Focus, we are reviewing this closely. We’ll be sharing updates, resources, and training as soon as clearer guidance is available. 

Our commitment 

We believe that: 

• Disabled people have the right to freedom, dignity, and autonomy 

• Safeguards are essential – not optional 

• Changes like this must be transparent, fair, and shaped by lived experience 

We will continue to stand alongside the people we support and advocate strongly for their rights. 

Further information 

We encourage you to explore trusted resources and guidance to understand the legal detail behind this decision: see useful article from Community Care here.  

We’ll continue to keep you informed as this develops.