The law just started listening. Your notes are how it hears.
4 August 2026 · Andy Massey, Head of Partnerships
For twelve years, one question decided whether someone in care was deprived of their liberty: were they under continuous supervision and control, and not free to leave? That was the "acid test" from the 2014 Cheshire West judgment, and it was deliberately blunt — what the person said about their life didn't matter. Lady Hale put it memorably: a gilded cage is still a cage.
On 2 June 2026, the Supreme Court changed that. In a case referred by the Attorney General for Northern Ireland, the court unanimously set aside the acid test and replaced it with something less tidy and more human: a rounded look at each person's actual situation. And at the centre of that assessment, for the first time, sit the person's own wishes and feelings.
What actually changed
Under Cheshire West, someone who loved their home and routines could still be "deprived of their liberty" purely because of the supervision they needed. The result was a system drowning in process: DoLS applications rose from around 13,700 a year to more than 330,000 by 2023/24, with a backlog over a hundred thousand people deep.
The new judgment says no single factor decides it any more. Practitioners must weigh the restrictions, how they're carried out, how normal the arrangements are, and — crucially — what the person themselves wants. The court also decided something unthinkable under the old law: a person who lacks capacity in the legal sense can still give valid consent to their living arrangements, if they're aware of their environment, understand their circumstances at a basic level, and show that they accept them.
But the judges were careful about what acceptance means. Mere compliance, they warned, "may carry little weight" — especially where someone is sedated, or frightened, or has simply stopped expecting to be asked. What matters is the difference between quiet and content.
Which is where the daily record comes in
For many of the people this law protects, wishes and feelings aren't announced in meetings. They show up at 7am when someone chooses the window seat again. In the way a person brightens when a particular team member comes on shift. In three restless nights after a room move.
Under the old test, those observations were good care practice. Under the new one, they're evidence. When an assessor or a court asks "what does this person want, and how do you know?", the honest answer lives in the daily notes — what the person said, how they behaved, what settled them and what didn't.
That quietly changes the job of the note. "Personal care given, no concerns" tells a future reader almost nothing. "M chose to stay in the lounge after lunch, said she likes watching the birds, declined her walk but was cheerful about it" is now the kind of detail the law turns on. And it can't be reconstructed afterwards — it's either written down at the time, or it's gone.
This won't stay theoretical for long
The Department of Health and Social Care has already issued interim guidance, and NHS England committed to an updated DoLS e-learning module by the end of July 2026. It's a fair bet inspectors will soon be asking a simple question: show me how you capture what your residents want and feel, day to day.
For care teams, this is good news dressed up as a legal headache. The law has finally caught up with something carers have always known — that noticing the person in front of you is the work. Teams that already write notes rich in voice and preference aren't facing a new burden; they're sitting on exactly the evidence the new law asks for.
That belief — that a good note captures a person, not just a task — is why we built Leafnotes the way we did. But whatever tools your team uses, the direction is clear. The most important legal document in social care right now isn't a court judgment. It's tonight's notes.
Sources and further reading: the government's summary of the judgment, and commentary from Blake Morgan and the UK Human Rights Blog.