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 not 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.
We stand together as Advocacy, Information & Advice Charities calling on the Prime Minister and our government to protect the Human Rights Act
On May 18th 2022, we wrote to the Prime Minister to raise our concerns about the proposed scrapping of the Human Rights Act, and the proposed introduction of the Bill of Rights.
Advocacy Focus has collaborated with over 40 Advocacy, Information and Advice Charities to bring attention to the important rights and protections the Human Rights Act offers our collective beneficiaries to live as equal people and to be treated with dignity.
Our letter to the Prime Minister can be read below in full. The letter was organised by the national advocacy Charity POhWER. To have your Charity or Organisation added to this letter digitally, be added to the mailing list for future campaign activity or for other queries relating to this letter please contact POhWER Chief Executive at helen.moulinos@pohwer.net or Leanne Hignett – leanneh@advocacyfocus.org.uk at Advocacy Focus who can support you with your query.
The UK has and continues to be a leader in the development and contributor of human rights law over the last hundred years. Since joining the European Convention on Human Rights (the Convention) we have been bound to comply with its provisions. The Human Rights Act brought rights home and created an important obligation for public authorities to comply with ECHR.
The Human Rights Act commits public authorities to comply with the European Convention of Human Rights in their policies, procedures and decision making. As advocates we see the positive impact Human Rights Act has had on the people we support through our charitable work.
Without the Human Rights Act, the modern advocacy profession might not exist with the same powerful impact or independent scrutiny. The Human Rights Act is at the epi-centre of a framework of rights and entitlements complemented by the Equality Act, Care Act, Deprivation of Liberty Safeguards, Liberty Protection Safeguards, Mental Health Act, Mental Capacity Act, related legislation in the devolved nations and Safeguarding.
Thanks to the Human Rights Act as advocates, we are able to independently challenge public authorities that support us in our everyday lives.
We help people to live as equal people through the cases we manage to have their human rights upheld in public services.
Advocacy is one of the many ways in which people can be supported and empowered to uphold their rights and entitlements, be provided with choices and options, and safeguarded from harm and abuse. An advocate can help a person to:
speak up for themselves or give their views
understand the process they are going through, their rights and what choices are available to them
be part of an important decision which is being made about them
prepare for and take part in meetings and tribunals
raise queries or concerns
access information in the format which is most suitable
access services that can support them
Advocates can also provide information and signpost people to other helpful services. Our intervention often means people do not need to access justice through the courts or legal pathway as our intervention empowers people and protects their human rights.
The current laws protect everyone in the UK no matter who they are or what their own situation may be. The proposed reforms would significantly reduce the legal responsibilities the Government currently has towards us and diminish mechanisms for our collective Charity beneficiaries to hold public services accountable and to be treated as equal people.
The proposed Bill of Rights would offer opt-outs to public authorities to pick and choose whose rights they supported and if/when they supported those rights. Many of the people we support are socially excluded, vulnerable and/or marginalised.
To focus this consultation on just a few minor legal technicalities and procedural nuances is diminishing the wider role the HRA 1998 plays to support people in everyday life and enable them to live as dignified people. Without HRA 1998, there would be no clear rulebook to govern expectations of conduct when dealing with public services such as Statutory Bodies, Local Authority, Prisons, NHS, DWP, Immigration, Housing and Coroner Service.
We believe the changes proposed are detrimental to our beneficiaries and would remove independent scrutiny of public services and the important role of advocacy.
We are calling on a wider study and equality impact assessment to understand the realities on the wider UK population, requesting for a meeting to share case studies and evidence on how HRA benefits the people we support every day through public authority independent scrutiny and mitigates often wider escalations in the legal process. Scrapping HRA would be detrimental to our beneficiaries, public authorities and wreak havoc with framework of other intersecting rights laws and codes of practices.
Our society remains unfair and unequal – the millions of people who sought support through our Charities should serve as significant reminder that the Human Rights Act 1998 and other protection laws are not currently being necessarily always upheld by local and central government bodies. Independent scrutiny, challenge, and freedom for people to empower themselves is a fundamental part of our society and democracy.
Yours sincerely,
Helen Moulinos, Chief Executive, POhWER
Jo Moore, CEO, Accommodation Concern
Peter Walsh, Chief Executive, Action against Medical Accidents (AvMA)
Mr Abe Ncube, Advocacy 1st, Community Connex
Leanne Hignett, Service Delivery Director, Advocacy Focus
Elssa Keegan, CEO, Advocacy Matters
Judith Davey, Chief Executive Officer, The Advocacy Project
Sabrina Solomon, Head of Service Delivery, The Advocacy Project
Ian Maxey, Deputy Head of Service Delivery, The Advocacy Project
Natasha Fox, CEO, Advocacy West Wales-Eiriolaeth Gorllewin Cymru
Philip Bramson, Chief Executive, Advonet
Ewan Roberts, Centre Manager, Asylum Link Merseyside
Sr Ruth Miller, Volunteer, Asylum Link Merseyside
Theresa Mawson, Volunteer, Asylum Link Merseyside
Kevin Keech, Volunteer, Asylum Link Merseyside
Bridie Sharkey, Trustee, Asylum Link Merseyside
Kacey Jones, Volunteer, Asylum Link Merseyside
Peter Simm, Volunteer, Asylum Link Merseyside
Ged Edwards, Volunteer, Asylum Link Merseyside
Gareth Hankinson, Staff, Asylum Link Merseyside
Steve Hawkins, Trustee, Asylum Link Merseyside
Mike Storry, Volunteer, Asylum Link Merseyside
Dr Paula Grey, Trustee, Asylum Link Merseyside
Shahzad Wilson Mukerjee, Volunteer, Asylum Link Merseyside
Hilary Hopkin, Volunteer, Asylum Link Merseyside
Jannatul Chowdhury, Staff, Asylum Link Merseyside
Chris Vick, Service Director, Advocacy Services for North East Wales (ASNEW)
Emily Barratt, Deputy Director, Brighton and Hove Speak Out
Chris Mounsher, Advocate, Brighton and Hove Speak Out
Emma Lopez, Engagement officer, Brighton and Hove Speak Out
Jeanette Goodman, Advocacy Team Leader, Brighton and Hove Speak Out
Sarah Coombes, Volunteer Coordinator, Brighton and Hove Speak Out
Sanchita Hosali, CEO, British Institute of Human Rights
Philip Kerr, Carers Federation
Angus Claydon, Director of Operations, The Care Forum
Kevin Peltonen-Messenger, CEO, The Care Forum
Michèle Stokes, Chief Executive Officer, Carers in Hertfordshire
Roma Mills, Policy and Engagement Manager, Carers in Hertfordshire
Colin Ling CEO, Chinese Wellbeing
Di Burbidge Service Development Manager, Chinese Wellbeing
Jack Davey, Advice Service Lead, CHAS Bristol
Alice Tibbert, Director, CHAS Bristol
Suzi Henderson, CEO, Cloverleaf Advocacy
Cherry Pedler, Manager, Community Support Network South London (CSN)
Garrick Prayogg, Project Manager, Cultural Diversity Network
Maria Dolly Galvis Zapata, Chief Executive Officer, The Elfrida Society
Ali F. Jabeen, Operations Manager, Specialist Advocacy Services for Parents with Learning Disabilities and/or Difficulties, The Elfrida Society
Deborah Kober Specialist Advocates for Adults and Parents with Learning Disabilities and/or Learning Difficulties, The Elfrida Society
Janay Crooks, Specialist Advocates for Adults and Parents with Learning Disabilities and/or Learning Difficulties, The Elfrida Society
Nikki Chivers, Group Facilitator for Adults with Learning Disabilities, The Elfrida Society
Lynne Stafford, Chief Executive, Gaddum
Ben Whalley, Head of Operations, Gaddum
Caroline Ridley CEO, Impact Initiatives
Louise Peim Operations and Contracts Manager, Impact Initiatives
Sam Grant, Head of Policy and Campaigns, Liberty
Katy Porter, CEO, Manor Gardens Welfare Trust
Saiqa Sahotra Community Advocate, Mary Seacole House
Alex Coombes Specialist Advocate, Mary Seacole House
Ben Allen Community Advocate, Mary Seacole House
Miatta Mac-Boimah Outreach Worker, Mary Seacole House
Simon Torkington Advocacy and Training Manager, Mary Seacole House
Dr Melvin Bradley, CEO, MhIST
Gillian Unsworth, CEO, Mind in Brighton and Hove
Sharn Tomlinson, Chief Executive Officer, Mind in Mid Herts
Michelle Kabia, CEO, Mind in Tower Hamlets and Newham
Fiona Scaife, Operational Director for Advocacy Services, Mind in Tower Hamlets and Newham
Shelu Miah, Operations Director, Mind in Tower Hamlets and Newham
Rita Hirani, CEO MindOut.
Mandy Bigden-Slack, Advocacy Service Manager, MindOut
Teresa Jennings, Chief Executive, n-compass
Rita Waters, Group Chief Executive, NYAS (National Youth Advocacy Service)
