To ensure the dignity and rights of vulnerable groups are recognised is a notable aim. Taken alongside the House of Lords review, this judgment gives us the opportunity to realise that aim. It also brings dangers.

The new test will mean I have to change the way I think about what liberty means in a legal discourse (what triggers the safeguards) whilst continuing to use a critical concept of liberty as socially constructed when deciding on best interest and what opportunities a person actually has open to them (when seeking the best care and opportunity for someone).

The test does raise some questions: To what degree does each, of the two parts, need to be met? Does a condition of residence meet it or can paragraph 49 be read so, in itself, it does not? What about people who are long term unconscious? How relevant is the period of time of the placement?

There is a danger in widening the net. It is therefore key that the right test for capacity is applied and capacity is promoted, best interest starts with the world through the person’s eyes and public bodies do not use the safeguards to enforce their will. Perhaps more CPRD compliant supported decision making could be part of the new safeguards? Maybe, also a more independent authoriser and tribunals?

We are at a crossroads, shouldering a burden of care. Will the structures we introduce fulfil this or just fill the silk pockets of the guards that patrol freedom’s ramparts, with the gilding from the cages of the vulnerable?

Richard Murphy
Social Care, Mental Health Act and Mental
Capacity Act Lead  Solent NHS Trust