By Gerard Crofton-Martin | September 2, 2026
Last Updated on September 2, 2026
Gerard Crofton-Martin, Interim Chief Executive at the Social Care Institute for Excellence (SCIE), argues that the Supreme Court’s revised approach to deprivation of liberty should refocus adult social care on strong Mental Capacity Act (MCA) practice, rights-based decision-making, workforce support and long-overdue reform.
The recent Supreme Court judgment on deprivation of liberty has understandably attracted significant attention across health and social care. By replacing the long-established Cheshire West ‘acid test’ with a more nuanced, ‘multifactorial’ approach, the Court has changed how we determine whether someone is deprived of their liberty. Factors including context, purpose, coercion, objection and ‘relative normality’ now carry greater weight than they did previously. This represents an important legal shift, and one that practitioners will need time to understand and apply.
But while the legal landscape has changed, the broader challenge facing adult social care has not. If anything, this judgment provides an opportunity to step back from debates about legal thresholds and ask a more fundamental question: how do we ensure that people who may lack capacity continue to have their rights, wishes and freedoms protected in practice? That question has always sat at the heart of the MCA, and it remains the one that matters most.
Key responsibilities remain
One of the clearest messages to emerge from SCIE’s recent webinar with Weightmans on the judgment was that practitioners should ‘get the MCA right first and foremost’. As Ben Troke, Partner at Weightmans, reminded us, ‘DoLS is the spotlight, not the padlock.’ That distinction matters because there is a risk that attention becomes focused on whether fewer people now meet the legal definition of deprivation of liberty, rather than on whether the care they receive is necessary, proportionate and respectful of their rights.
The Supreme Court judgment may reduce the number of cases requiring formal authorisation, but it does not lessen our responsibility to make good decisions. It is SCIE’s view that the judgment does not change the need for robust assessments of capacity, best interest decision-making or the requirement for restrictions to be necessary and proportionate. Nor does it change the importance of taking a rights-based approach and keeping the MCA at the centre of decision-making. This is particularly important because the system is already under considerable strain.
A pivotal moment
The Care Quality Commission’s new report, Local authority assessments 2023 to 2026: Emerging themes and findings, highlights increasing demand, workforce recruitment challenges and significant delays in processing Deprivation of Liberty Safeguards (DoLS) applications. It also identifies staff knowledge and understanding of both DoLS and community deprivation of liberty orders as areas requiring improvement.
As such, the Supreme Court decision arrives at a pivotal moment. For too long, conversations about deprivation of liberty have become dominated by legal processes rather than the outcomes we are trying to achieve. The MCA was never intended to be a compliance exercise. It is a framework that exists to empower people wherever possible, protect those who cannot make decisions for themselves, and ensure that any restrictions are the least restrictive necessary to achieve a legitimate aim. If this judgment encourages services to return their focus to those principles, then it has the potential to strengthen practice rather than weaken safeguards.
Reform cannot be allowed to stall
Real change, however, will require more than updated guidance. It will require investment in the confidence and capability of the workforce, stronger leadership, consistent supervision and opportunities for shared learning across organisations. Practitioners need support to exercise professional judgement, not simply new rules to follow. They also need the time and space to have meaningful conversations with people and families, recognising that good MCA practice is built on relationships, not paperwork.
SCIE has consistently argued that reform of the MCA cannot be allowed to stall while pressures on the system continue to grow. This formed the basis of our campaign back in the autumn of last year, which highlighted that the failure to act on long-delayed reforms to the MCA is contributing to preventable deaths, unlawful detentions and growing human rights concerns.
A renewed commitment
As we look holistically at this complex picture of change, the key now is helping organisations translate legal change into confident, compassionate practice. It is about supporting leaders to embed the principles of the MCA across their services. It is about sharing evidence, promoting learning and ensuring that people’s rights remain at the centre of decision-making, whatever the legal framework may be.
The Supreme Court has undoubtedly changed the legal conversation around deprivation of liberty. Our challenge now is to ensure that this becomes a catalyst for something much more important: a renewed commitment to high-quality MCA practice that protects rights, supports professional judgement and improves the lives of the people social care exists to serve.
Gerard Crofton-Martin is Interim Chief Executive at SCIE.