Care home providers across the UK must prepare for a major shift in safeguarding practice after the UK Supreme Court overturned the long‑standing ‘acid test’ for deprivation of liberty cases, the government has said.
Ministers have issued fresh guidance following last month’s judgment, which ruled that a previous ‘acid test’ set by a 2014 judgment wrongly assumed that if someone lacks legal capacity under the Mental Capacity Act (MCA) 2005, they cannot give valid consent to the arrangements.
This had been the basis of care home and hospital applications under ‘Deprivation of Liberty Safeguards’ to local authorities to confine a person in a setting, and had led to a marked rise in assessments and applications.
Older people made up the bulk of individuals who had at least one DoL application completed by local authorities across England in 2024-25, according to the latest government figures. The over 85 age group is the largest group represented in the 2024-25 statistics, with more than four in ten completed applications for this group (42.4 per cent) of the 288,455 total individuals, while more than seven in ten (73.6 per cent)) DoL were made for people aged 75 or older.
The new government guidance sets out the implications of the ruling, which requires an assessment of each case based on several factors, including the type, duration, effects and manner of implementation of restrictions on the person.
It says the changes are ‘likely to reduce significantly the number of deprivation of liberty authorisations’.
However, in the short term, it said the government recognises that a ‘more cautious approach will be needed, with borderline cases referred for review.’.
The new guidance adds the ruling’s ‘changes to the definition of a deprivation of liberty apply with immediate effect and extend across the UK, and calls on organisations to ‘begin aligning their practice with this new legal position.’
Registered care home providers or managers and local authorities should ‘expedite plans’ in the first instance to share the ruling throughout their organisations and ‘upskill their workforce’ in line with the law change, according to the new guidance.
The Department of Health and Social Care (DHSC) said it plans to publish further ‘interim guidance’ in collaboration with a ‘range of stakeholder partners and charities, including practical case studies to help people understand how they should apply the judgment to their work.’
