NEWS
On 2 June 2026, the Challenging Behaviour Foundation published its response to the Supreme Court judgment on deprivation of liberty. For social workers, this is not a remote legal issue. It goes directly to how we understand liberty, consent, restriction, safeguarding and human rights in the lives of disabled people. Editorial update, 18 October 2026: the reflections below are retained in their original context; current practice must follow Attorney General for Northern Ireland Reference [2026] UKSC 16 and the implementation guidance described below.
On 2 June 2026, the Challenging Behaviour Foundation published its response to the Supreme Court judgment on deprivation of liberty. For social workers, this is not a remote legal issue. It goes directly to how we understand liberty, consent, restriction, safeguarding and human rights in the lives of disabled people. Editorial update, 18 October 2026: the reflections below are retained in their original context; current practice must follow Attorney General for Northern Ireland Reference [2026] UKSC 16 and the implementation guidance described below.
The judgment concerns the Attorney General for Northern Ireland Reference [2026] UKSC 16, decided on 2 June 2026. It overruled the approach in P v Cheshire West and Chester Council [2014] UKSC 19. The familiar supervision-and-control/not-free-to-leave factors remain relevant, but they are no longer a sufficient acid test on their own.
That test mattered because it gave a clear, practical safeguard. It meant that a person’s right to liberty did not depend on whether they could object, whether they appeared happy, whether they were compliant, or whether others viewed the placement as kind, necessary or normal.
For many disabled people, particularly people with learning disabilities, autistic people, people with complex needs and people who communicate distress or disagreement in non-verbal ways, that safeguard was profoundly important.
At Nellie Supports, our work in mental capacity assessments, Court of Protection reports and wider independent social work services frequently sits at the point where legal rights, care arrangements and real-world restrictions meet. This is why the judgment matters so much in practice.
Cheshire West was never perfect in its practical consequences. The Deprivation of Liberty Safeguards system became overloaded, under-resourced and, in many places, deeply delayed. Families often found the system confusing. Professionals were often left trying to apply complex legal principles in pressured, underfunded services.
But the principle at the heart of Cheshire West was simple and powerful: liberty is universal.
A person does not have fewer human rights because they are disabled. A person does not lose the protection of Article 5 of the European Convention on Human Rights because they are compliant. A person does not stop being deprived of liberty simply because the arrangements are described as care, support, supervision or protection.
That principle was particularly important because restrictive care arrangements can become normalised. Locked doors, constant supervision, restrictions on contact, control over movement, limited access to the community, restraint, seclusion, medication, environmental restriction and institutional routines can all become part of someone’s daily life.
Without proper scrutiny, those restrictions can become invisible.
This is why deprivation of liberty safeguards have never just been a legal process. They are a human rights checkpoint. They ask whether the arrangements are lawful, necessary, proportionate, in the person’s best interests, and whether there is a less restrictive way to meet the same need.
The Supreme Court replaced the acid test with a multifactorial assessment of the person’s concrete situation, including the type, duration, effects and manner of restrictions. It also distinguished valid consent for Article 5 purposes from domestic MCA capacity. The government’s guidance says no conclusion of valid consent can be drawn where there is serious doubt. Source, updated 22 September 2026: https://www.gov.uk/government/publications/changes-to-the-definition-of-deprivation-of-liberty/uk-supreme-court-2026-judgment-on-what-constitutes-a-deprivation-of-liberty
That is a significant shift in focus.
The concern is not that wishes and feelings are irrelevant. They are central to good social work practice. The Mental Capacity Act 2005 requires us to take them seriously. Any person-centred assessment should give proper weight to the individual’s voice, communication, preferences, history, relationships and emotional response to their circumstances.
The concern is whether expressed happiness, apparent compliance or lack of objection may now be used to reduce legal scrutiny in situations that are still highly restrictive.
That risk should concern every social worker.
Many disabled people, particularly people with severe learning disabilities, autism, complex communication needs, acquired brain injury, dementia or profound cognitive impairment, may not object in ways that services recognise.
Some people may not use speech. Some may have learned compliance after years of institutional care. Some may express distress through behaviour that is then framed as “challenging” rather than communicative. Some may appear content because they do not know alternatives exist. Some may be happy with aspects of their care, while still living under restrictions that would be unthinkable for a non-disabled person.
This is where human rights practice becomes real.
The right to liberty is not an abstract legal concept. It is protection against institutionalisation. It is protection against coercion. It is protection against restrictive practice becoming routine. It is protection against people being placed out of sight, without meaningful challenge, advocacy or review.
The Challenging Behaviour Foundation has rightly highlighted the potential impact on people with learning disabilities and their families. If legal safeguards are narrowed without robust alternatives in place, the people most at risk will not usually be those who can complain loudly, instruct solicitors, contact journalists or challenge public bodies.
They will be people who may not be able to clearly object.
That is why this judgment is so concerning.
It is important to be honest about the existing DoLS framework. It has not worked as it should.
There have been unacceptable delays. Local authorities have carried heavy backlogs. Families have experienced delay and confusion. Best Interests Assessors and mental capacity professionals have often been left carrying the consequences of a system that was never resourced properly.
The Government has recognised wider problems in the system, including through work on Liberty Protection Safeguards. Editorial update: those safeguards must not be described as an operational replacement merely because the 2019 legislation exists. Current official guidance continues to identify DoLS and court routes where Article 5 is engaged.
Reform is needed.
But the answer to an imperfect safeguarding system cannot be to leave people with fewer protections.
The answer should be a better system: clearer guidance, proper resourcing, skilled assessment, independent advocacy, regular review, meaningful family involvement, better training and a genuine commitment to least restrictive practice.
A safeguard that is delayed needs fixing.
A safeguard that is bureaucratic needs reform.
A safeguard that is inconsistently applied needs investment and leadership.
But a safeguard that protects people from unlawful restriction should not simply be narrowed because the system built around it has been allowed to fail.
After my conversation last week with Sam, the interim CEO of BASW UK, it feels more imperative than ever that social workers understand human rights not just in theory, but in practice.
This judgment makes that even more urgent.
Social workers need to be confident in the Mental Capacity Act. We need to understand deprivation of liberty, Article 5, proportionality, necessity, best interests, advocacy, supported decision-making and least restrictive practice.
But more than that, we need to know how to apply these principles in real life.
That means asking difficult questions:
Is this person really free to leave?
Who controls their day-to-day life?
What restrictions are in place?
Are those restrictions necessary?
Are they proportionate?
Has the person been supported to understand and express their views?
How does this person communicate objection, distress, fear, resignation or disagreement?
Is the person’s apparent happiness being treated too simplistically?
Could there be a less restrictive option?
Has independent advocacy been considered?
Are family concerns being heard?
Is this genuinely care, or has care become control?
These questions are not anti-care. They are good care.
They are the questions that prevent restrictive arrangements from becoming normalised. They are the questions that protect people from being hidden in plain sight.
One of the most delicate issues following this judgment will be how professionals interpret wishes and feelings.
A person’s wishes and feelings must always matter. They should never be dismissed simply because the person lacks capacity for a particular decision. Social workers should be leaders in ensuring that disabled people’s voices are heard, respected and acted upon.
But wishes and feelings must not become a shortcut around legal protection.
There is a difference between genuinely understanding and respecting a person’s expressed will, and using apparent contentment to avoid scrutiny of restrictive arrangements.
There is also a difference between a person being happy with trusted staff, familiar routines or a preferred home environment, and that person giving meaningful consent to restrictions on liberty.
Social work practice must be alert to that distinction.
This is particularly important in complex cases involving capacity to decide where someone lives, care arrangements, contact with others, safeguarding concerns, family disagreement or potential Court of Protection involvement.
This judgment lands at a time when adult social care is already under strain. Services are stretched. Placements are limited.
Community support is inconsistent. Families are exhausted. Professionals are pressured. Restrictive options can sometimes appear easier to organise than creative, rights-based support.
That is precisely why social workers must remain anchored in human rights.
The core question is not simply “is this placement working?”
It is also “is this person free?”
And if they are not free, we must ask whether that restriction is lawful, necessary, proportionate, reviewed, challengeable and genuinely the least restrictive option.
Safeguarding is not only about responding after harm has happened. It is also about identifying the conditions in which harm becomes more likely. Reduced scrutiny, unclear legal thresholds, weak advocacy and normalised restriction are all safeguarding risks.
Social workers have a vital role in what happens next.
The concern expressed here was that social workers should not wait passively for guidance before taking people’s rights seriously. Editorial update: government guidance has since been updated, including on 22 September 2026, and practitioners should use it alongside the judgment while continuing to examine restrictions and participation carefully.
We must challenge restrictive practice. We must record clearly. We must involve advocates. We must listen to families. We must understand communication. We must apply the Mental Capacity Act properly. We must be prepared to ask uncomfortable questions when care arrangements become controlling.
Above all, we must remember that liberty matters most when a person is least able to defend it for themselves.
Disabled people’s rights are not optional. They are not dependent on convenience, resources, compliance or professional assumptions. They are not removed because a person appears settled, quiet, happy or unable to object.
Human rights belong to everyone.
Liberty matters.
Safeguards matter.
And social workers must be ready to defend them in practice.
Nellie Supports provides independent mental capacity assessments across England and Wales, including decision-specific assessments where questions arise about care, residence, contact, finances and Court of Protection matters.
For Court of Protection evidence, our COP3 mental capacity assessment service supports families, deputies, attorneys, solicitors and professionals who need clear, structured and decision-specific capacity evidence.
We also provide wider independent social work services where families or professionals need a social care perspective on restrictive arrangements, care planning, safeguarding concerns or complex support needs.
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Published 2 June 2026
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