Deprivation of Liberty Safeguards “only one of several protections in place”, says minister

In a written answer to a question from Liberal Democrat peer Lord Scriven, who asked what steps Government was taking to ensure that individuals reclassified as out-of-scope for DoLS following the decision in AGNI continue to have their individual care plans “independently scrutinised”, Baroness Merron emphasised the Government’s commitment to safeguarding and protecting the rights of people lacking capacity.

She said: “The deprivation of liberty safeguards (DoLS) are only one of several protections in place, and there are a range of other safeguards which are available to individuals who are not subject to DoLS. These include the Mental Capacity Act 2005 provisions, local authority safeguarding duties through the Care Act 2014, oversight by the Care Quality Commission, and common law duties of care.

“Through these, individuals not subject to DoLS, who are receiving care and support, would be able to access independent advocacy as well as independent scrutiny of their care, including consideration of whether there is proportionate use of restrictive practice where appropriate.”

On 2 June in A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16, the Supreme Court took the unusual step of overruling its 2014 decision in Cheshire West, which it concluded had been wrong in principle.

In interim guidance published last week (15 June), the DHSC directed that organisations should begin “aligning their practice” with the new legal position.

Summarising the 2026 judgment, the DHSC said the Supreme Court concluded:

• instead of relying on the single ‘acid test’, an assessment of whether someone is deprived of their liberty must now consider multiple factors - that is, it is multifactorial;
• the starting point in assessing whether someone is deprived of liberty is to look at the specific situation of the individual and take into account the type, duration, effects and manner of implementation of restrictions on the person – “crucially, no single factor is determinative”;
• the Cheshire West 2014 judgment wrongly assumed that if someone lacks legal capacity under the MCA 2005, they cannot give valid consent to the arrangements. “The 2026 judgment clarifies that a person’s expression of their wishes and feelings carries significant weight. A person can give valid consent if they are conscious of their environment, have a basic level of understanding and are capable of expressing a view that they accept and/or are happy with the situation. However, if there is serious doubt, no conclusion of valid consent can be drawn”;
• the effect of the restrictions on the person may differ based on whether or not the person is content with their arrangements - Cheshire West 2014 was “wrong to conclude that a person’s lack of objection is never legally relevant to the question of objective confinement”.

Also posing a written question post AGNI, Lord Rennard asked “what estimate [His Majesty's Government] have made of the number of people who will lose access to independent reviews and advocacy as a result of the Supreme Court ruling removing the Cheshire West Deprivation of Liberty Safeguards framework; and what assessment they have made of the risk of increased abuse and neglect in closed care settings as a consequence.”

Responding, Baroness Meron said: “The deprivation of liberty safeguards (DoLS) will continue to apply in line with changes required by the Supreme Court judgment. This includes the right to independent reviews and advocacy where appropriate.

“[…] Individuals receiving care and support who are not subject to DoLS can also access independent reviews and advocacy where appropriate under a range of other safeguards available, including the Mental Capacity Act 2005 (MCA) and the Care Act 2014.”

Meanwhile, highlighting the role of the Care Quality Commission (CQC), she said: “The CQC undertakes independent oversight of these safeguards, including DoLS, and will continue to do so in light of the Supreme Court judgment.

“As part of their inspection regime, CQC checks that care settings and providers have effective systems to help keep adults safe from abuse and neglect, including those subject to DoLS and those not subject to DoLS.”

Last week (19 June), the Association of Directors of Adult Social Services (ADASS) endorsed the guidance issued by DHSC on key points from the Supreme Court judgment on what constitutes a deprivation of liberty.

The organisation reminded local authorities there is “no period of grace”. Therefore, the so-called 'acid test' in Cheshire West must no longer be followed.

Lottie Winson