On behalf of PBS4, I share the concerns expressed by partners across the sector regarding the recent Supreme Court ruling that the ‘acid test’ should no longer be used as the sole measure of deprivation of liberty. This decision is deeply worrying, not least because it risks reducing the clarity and consistency that have underpinned safeguards for some of the most vulnerable people in our society.
We must recognise the significant risk that people who appear content or compliant with their care may no longer be recognised as being deprived of their liberty, potentially limiting access to vital safeguards, independent scrutiny, and legal challenge. History and experience tell us that compliance does not always equate to genuine consent, and without robust oversight there is a real danger that restrictive practices, however well-intentioned, could go unchallenged.
At the same time, this moment presents an important opportunity. The Mental Capacity Act remains one of the most influential pieces of legislation for people with learning disabilities and those requiring neurodisability services, yet it is not without its flaws. There is now a real chance to reflect, refine, and strengthen the framework so that it continues to uphold people’s rights in a way that is both meaningful and proportionate.
We must be honest about the language and concepts we use. Restraint, in its simplest terms, means stopping a person from doing something they want to do. Many of the individuals we support who receive continuous supervision do not experience this as restrictive; for them, it is enabling, supportive, and essential to their safety and wellbeing. However, this does not mean such supervision is not a restrictive intervention. We must call a spade a spade. Recognising when restrictive interventions are present enables us to properly consider human rights and ensure appropriate safeguards are in place.
Importantly, the presence of restriction does not always equate to a person experiencing being restrained. This is a complex distinction, and one that cannot be left to interpretation without sufficient understanding and oversight. There may be ways to ensure robust protections and rights-based decision-making without defaulting to Deprivation of Liberty Safeguards in every case, but any evolution must be handled with great care.
It cannot be forgotten why these safeguards exist. The Mental Capacity Act was, in part, a response to the Bournewood gap where individuals could be informally confined without the protections of the Mental Health Act simply because they were not objecting. That history must remain at the forefront of our thinking. Any change that moves us away from clarity and protection risks repeating past injustices.
To the people we support and their families, we want to offer reassurance. Our values-driven approach will not change. Human rights will remain at the heart of everything we do. Regardless of the legal framework in place, we will not use restrictive interventions without clear lawful justification. We will continue to ensure that each person’s rights are fully considered, and that decisions are made in line with their preferences, wishes, and best interests, and in partnership with those who know and care about them most.
This ruling is concerning, but it must also be a catalyst. If we respond with care, collaboration, and a steadfast commitment to rights, we can help shape a system that is clearer, fairer, and better for the people we all serve.
Written by Jonathan Beebee – Chief Enablement Officer
