The judgement effectively changes the legal definition of a deprivation of liberty. It reverses the legal framework known as Cheshire West, created in a ruling in 2014, in which an “acid test” is applied to determine whether a deprivation of liberty is taking place. The test meant that anybody who lacked the capacity to consent to their care, support and accommodation arrangements, and was placed under constant supervision or restraint, would be classed has being deprived of liberty.

Once a deprivation of liberty is established, care providers must follow a series of protocols known as the Deprivation of Liberty Safeguards (DoLS) in care home and hospital settings. For community settings like Shared Lives, a separate process is triggered, in which care providers need to apply for a formal authorisation for the deprivation from the Court of Protection. Both sets of rules provide vital safeguards of people’s rights, requiring care settings to follow principles enshrined in the Mental Capacity Act 2005, such as demonstrating that:

• there is no less restrictive alternative possible
• the restrictions are proportional to the actual level of risk of harm to the person
• the decision is in the best interests of the person
• the person lacks capacity to consent
• the person’s right to challenge the arrangement has been supported

The new judgement means that people who lack of capacity to consent to care, support and accommodation arrangements will no longer automatically be considered as deprived of liberty if they are under continuous supervision and restraint. They will therefore no longer automatically receive the protections outlined above. Instead, the assessment of whether a deprivation is taking place or not will be “multifactorial” and place greater emphasis on an individual’s specific situation.

In practice, this means that a person whose ability to experience liberty is limited by profound cognitive disabilities or is prevented from leaving a particular setting by their physical disabilities, is less likely to be seen as being deprived of their liberty and therefore to access the DoLS and community protocol safeguards.  The judgement also means that a person who lacks capacity could still be seen as consenting to the deprivation of their liberty, despite the extreme difficulty of determining whether this consent is given with full understanding and no sense of pressure to comply.

Crucially for Shared Lives settings, the ruling emphasises assessing the “relative normality” of a person’s situation, so that, according to the government, “greater restrictions would be required at home in order for deprivation of liberty to arise.”

The practical effect of the ruling is that a huge number of people in the UK currently protected by DoLS and community setting safeguards will no longer be. The government has pledged to create guidance about the full implications of the ruling and Shared Lives Plus will be working actively to ensure that this includes clear information about what the judgement means for people supported in Shared Lives, Shared Lives carers, scheme and social workers.

For further information, please see:

The interim government guidance on the ruling

The court record of the ruling