Recording Deprivation of Liberty After the June Judgment: What Your Care Plans Now Need to Say

Three months on from the Supreme Court judgment, most providers I speak to have done the same two things. They have circulated the ruling, and they have updated the policy.

Both were necessary. Neither is the thing that will be looked at.

What gets looked at is the care plan. The daily notes. The capacity assessment on file. And in most services those documents still describe a legal test that stopped being the law on 2 June 2026.

Let me be straight with you. Under Cheshire West, recording was easy, because the test did the work for you. Continuous supervision and control, not free to leave, no valid consent possible — you did not need to write much, because the answer fell out of the facts. The new multifactorial approach does not work like that. It asks you to reach a judgement about a specific person. A judgement you cannot evidence is, for regulatory purposes, a judgement you did not make.

The gap nobody has closed

The DHSC guidance published on 15 June 2026 tells you what the multifactorial assessment considers: the type, duration, effects and manner of implementation of restrictions, whether the person objects, how far the situation is from detention in a prison cell, the relative normality of the arrangements, and the purpose of the arrangement. It tells you compliance is not consent. It tells you to refer when in doubt.

What it does not do — and DHSC has said further interim guidance with practical case studies is still to come — is tell you what a good record looks like.

So providers are left holding a test that turns on nuance, with documentation designed for a test that turned on a binary.

Why this is a compliance problem, not just a paperwork one

Three regulations are in play here, and it is worth being precise about which does what.

Regulation 11 requires care and treatment to be provided with the consent of the relevant person, and where the person lacks capacity, requires you to act in accordance with the Mental Capacity Act 2005. The judgment has just made the relationship between capacity and consent considerably more subtle. A person can lack capacity to decide on their care and residence under the MCA and still give valid consent to the arrangements, if they are conscious of their environment, have a basic level of understanding, and can express a view that they accept or are happy with the situation. Where there is serious doubt, no conclusion of valid consent can be drawn. That distinction has to appear somewhere in your records, because it is now doing real work.

Regulation 13 covers safeguarding service users from abuse and improper treatment, and reaches restraint and unlawful restriction of liberty. If you are restricting someone, you need to be able to show why it is necessary and proportionate to a risk of harm.

Regulation 17 requires accurate, complete and contemporaneous records for each person using the service. This is the one that catches most services, and it is the one I write about most often, because it is the quiet regulation that turns a practice problem into a breach.

None of these changed on 2 June. What changed is the analysis they now have to hold.

What I would put in the record

In my experience, the services that come through scrutiny well are not the ones with the most sophisticated policy. They are the ones where a care worker's notes and a manager's assessment tell the same story.

For each person where restrictions apply, I would want the file to show:

The restrictions, specifically. Not "supervision in place". Which doors are locked and when. Whether anyone is with the person, for how long, and why. Any sedating medication and its purpose. Any one-to-one. Any restraint, and its frequency. The guidance names type, duration and manner of implementation as separate factors, so record them separately.

The effect on this person. Two people can live under identical restrictions and experience them completely differently. That was legally irrelevant under the acid test. It is central now.

Wishes and feelings, evidenced. Not concluded. The question DHSC poses is "how do we know what this individual actually understands and wants", not "are they compliant". So record what the person said, what they did, what they were observed doing. Record previously expressed wishes and previously observed behaviour. Record who you spoke to — family, staff — and what they told you. Record how many visits or conversations it took, because the guidance anticipates it may take several.

Objection, or its absence — and the difference between absence and inability. DHSC gives examples of objection: attempts to leave, refusing or physically rejecting care, restraint or one-to-one used to manage behaviour, covert medication where the person objects to medication, sedating medication where it affects the ability to object. Note that last one carefully. If your restrictions are themselves suppressing a person's capacity to object, recording "no objection noted" is not evidence of contentment. It is evidence of a circular problem, and it needs saying on the record.

The factors that cut against a deprivation. Relative normality. Purpose — care and protection rather than punishment or coercion. Where liberty is constrained by the person's own condition rather than by anything imposed against their will. These matter particularly in learning disability and physical disability services, and I have seen very little written about them.

The reasoning, and who did it. Whether a referral was made or not, and why. Where you were unsure and referred anyway — which is what the guidance asks for — say so. A recorded doubt that led to a referral is a good record. An unrecorded certainty is not.

What I would not do

I would not go through the files retrospectively rewriting historic entries to fit the new test. Records are contemporaneous or they are worthless.

I would not treat the review of an existing authorisation as your decision. That sits with the local authority as supervisory body, and leaving an authorisation in place while it waits for review does not make the deprivation unlawful.

And I would not wait for the further DHSC guidance before touching your documentation. It is coming, and it will help, but the judgment has had immediate effect since 2 June. Three months of records written against the wrong test is a harder conversation than three months of imperfect records written against the right one.

The honest version

This is more work than the acid test required, and anyone telling you otherwise is selling something. The trade is that the record now has to show you know the person, rather than show you applied a formula.

If you are updating templates or briefing a team on what to write, that is exactly the kind of thing worth getting right first time — get in touch.

Tiffany Nelson supports adult social care providers in England with CQC registration and inspection preparation. tiffanynelsonconsulting.co.uk | Connect with me on LinkedIn | Check out how I can help here.

Sources: A Reference by the Attorney General for Northern Ireland [2026] UKSC, judgment handed down 2 June 2026; DHSC, UK Supreme Court 2026 judgment on what constitutes a deprivation of liberty, published 15 June 2026; P v Cheshire West and Chester Council [2014] UKSC 19; Mental Capacity Act 2005; Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, Regulations 11, 13 and 17; DoLS code of practice (republished 2 June 2026).