With the vast majority of Deprivation of Liberty safeguard (DoLs)applications made for people aged 75 and over, the new legal threshold is likely to have a big impact on care home operators.
I was genuinely shocked when the latest government Deprivation of Liberty Safeguards (DoLs) data came out a couple of months ago. Being relatively new to the detail of the care of older people in the UK, I was astonished to read that the vast, vast majority of DOLs applications are for older people over the age of 75.
So when the implications of the ruling earlier this month that overturned the 2014 judgment – known as Cheshire West – was made clear by a government statement earlier this week that the numbers are likely to be “significantly reduced” as a result, I was stopped in my tracks.
Responses from both lawyers and the government so far seems to signal huge change for care home operators. 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 judgement essentially says that the previous ‘acid test’ assumption that a person cannot give valid consent to DoL arrangements if they lack legal capacity under the Mental Capacity Act (MCA) 2005 is incorrect.
It adds that ‘a person’s expression of their wishes and feelings carries significant weight’ and ‘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, according to the government assessment, which also points out that the previous legal assumption that ‘a person’s lack of objection is never legally relevant to the question of objective confinement’ has been ruled as wrong following the 2026 judgment.
As a result of these changes, the government says that local authorities and providers must ‘expedite’ plans to communicate the change throughout organisations and ‘upskill’ their workforce to change their practice ahead of more detailed government guidance expected soon.
I’m still learning about the sector, but from where I’m standing this legal decision looks like it will have a seismic impact on care providers and how they manage older people with dementia in their care. However, the public response from providers and their representatives so far seems to have been muted , so it’s hard to tell. I’m looking forward to conversations to better understand how the sector feels and how it’s likely to respond over the next weeks and months.
