A Supreme Court Ruling Gives Mental Capacity Reform a Chance to Start Again
On a medical ward in almost any English hospital, a discharge coordinator keeps a folder that never quite empties. Inside are applications for authorisation under the Deprivation of Liberty Safeguards, each concerning a patient with dementia or a learning disability whose care involves constant supervision. Some wait months for an assessor. The patient waits in a bed that someone else urgently needs.
That folder swelled after 2014, when the Cheshire West judgment lowered the threshold for what counts as a deprivation of liberty. In June this year the Supreme Court revisited the question in the AGNI case. It set a higher bar and replaced the old acid test with a broader assessment of a person's circumstances. Thousands who once needed formal authorisation may no longer do so. The Department of Health and Social Care promised a consultation on the Liberty Protection Safeguards in the first half of 2026. October has arrived and the consultation has not.
The delay is understandable, and it can be put to good use. The case for the Liberty Protection Safeguards rested partly on the backlog, and the backlog is likely to fall. Ministers are therefore free to ask a sharper question than whether to rescue a design legislated for in 2019. They can ask what a proportionate system looks like for the smaller group who remain deprived of liberty, and they can build it around the NHS as it is being reshaped today.
That reshaping is considerable. The ten year plan commits the service to neighbourhood health and more care delivered close to home. More people with complex needs will therefore live in supported settings and their own homes, where the Court of Protection route is slow and costly. The Liberty Protection Safeguards embed assessment in ordinary care planning, and that idea suits this direction well. Integrated care boards, meanwhile, are absorbing deep cuts to running costs, and councils face their own structural upheaval. Any scheme that shares authorisation duties between councils, NHS commissioners and hospitals must be tested against capacity that is contracting. A consultation held now can say so plainly.
Planning is the most immediate benefit of a decision. Directors of adult social services have asked for one so that they can decide whether to retrain, redeploy or recruit best interests assessors, a scarce profession. Hospital managers need the same clarity to design discharge pathways, since waits for authorisation add to delayed transfers of care. Health-tech suppliers building tools for recording capacity assessments and consent face identical uncertainty about what the product must eventually support.
The rights dimension deserves a constructive response as well. The charities that defended Cheshire West warn that people whose daily lives are unchanged may lose protection because the legal test has moved. That concern is well founded. A higher threshold leaves the duties under Article 5 of the European Convention on Human Rights intact, and it leaves the need for a route of challenge intact too. The sensible use of any saving from smaller caseloads is to fund independent advocacy and early review. People who fall outside the formal framework would still have someone to help them question decisions about where and how they live.
A further opportunity sits alongside the consultation. The Mental Capacity Act code of practice dates from 2007 and predates most of the case law that practitioners now apply. A revised code that reflects AGNI, decisions about digital life and the changes to mental health legislation would give frontline staff guidance they can use on a busy ward. It would also cost far less than a new statutory machine.
The longer the question sits in the in-tray, the more the practical advantages narrow. Councils will settle on workarounds and hospitals will build local habits, and these will be hard to unpick later. A decision soon, packaged with funded advocacy and a modern code, would turn a legal shock into the first coherent settlement on mental capacity in nearly two decades. The folder on the ward could finally get thinner.
