A gilded cage is still a cage? Unless you're the Supreme Court in 2026

Four Human Rights Concerns for Advocates

The Supreme Court's recent judgment raises significant human rights concerns that advocates should be alert to.  In this piece, advocates are encouraged to understand significant threats to humans rights posed by the ruling.

Human Rights Concern #1. Understanding Compliance is Not Consent

One of the biggest risks is confusing compliance with consent. There is a substantial difference between:

"The person is not objecting" and "The person is positively expressing that this is where they wish to be."

The first is an absence of resistance. The second is evidence of preference.

The court judgment appears to be looking for the second, not merely the first, however the danger is that professionals will confuse acceptance, resignation, acquiescence, dependence or fear-based compliance with genuine agreement. The danger is that services will treat silence, passivity or compliance as evidence of consent.

The charities involved in the case highlighted concerns about the vulnerability of many disabled people to compliance and institutionalisation.

Many people:

• Learn not to challenge authority

• Avoid conflict

• Become dependent on carers

• Become institutionalised

• Are highly suggestible

• Normalise restrictive or poor-quality care

As a result, a person may appear settled or content whilst having very limited choices.  This raises important questions:

• Is the person genuinely agreeing?

• Are they simply accepting the inevitable?

• Do they understand that alternatives exist?

• Have they experienced a different way of living?

Advocates will recognise this issue immediately. Many people in hospitals and residential settings frequently tell us "I'm fine here", "Don't worry about me” "I don't want to be a bother".

Yet further exploration often reveals fear, loss of confidence, dependency, hopelessness or institutionalisation.

The human rights risk is that resignation may be mistaken for consent.

Human Rights Concern #2. Hidden People Become Even More Hidden

Under the Cheshire West approach, a person who was under continuous supervision and control and not free to leave was generally considered deprived of liberty. This triggered important safeguards, including:

·       Independent assessment

·       Advocacy and representation

·       Rights of challenge

·       Court oversight

·       Regular review

The concern is that some people may remain subject to exactly the same restrictions yet lose access to these protections because professionals conclude that they appear content with their arrangements.

Many of the people most affected by this judgment are already at risk of becoming invisible. They live behind closed doors in hospitals, care homes and supported living services, often with little independent scrutiny of their lives.

For years, advocacy has acted as a vital safeguard. Independent advocates have listened, questioned, challenged and ensured that people's voices are heard when others may have overlooked them. This judgment has the potential to remove that safeguard for hundreds, if not thousands, of people overnight.

The question is simple: Who will be there to hear the voices that are hardest to hear?

Many of those affected currently rely on a paid Relevant Person's Representative because they have no family or friends able or willing to fulfil that role. By definition, they are among the most isolated and vulnerable people in the system.

If Article 5 safeguards no longer apply, the advocacy and representation will disappear too, leaving people most in need of independent scrutiny, representation and challenge without anyone to stand alongside them. History teaches us that abuse and neglect rarely thrive in the presence of independent scrutiny. They thrive when people are hidden, unheard and forgotten.

The greatest risk is not simply that safeguards are lost. It is that hidden people become even more hidden.

Human Rights Concern #3: Less Independent Scrutiny Invites Harm

A fundamental question raised by this judgment is: who decides whether a person appears content with their arrangements?

In many cases, that decision will be made by care providers, commissioners and health and social care professionals employed by the very organisations responsible for delivering, funding or overseeing the placement.

This creates an obvious conflict of interest.

The same organisations responsible for imposing restrictions may also become the gatekeepers deciding whether formal safeguards are required and whether Article 5 protections are engaged.

This concern is not new. It was one of the key issues raised during the development of the Liberty Protection Safeguards. The risk is straightforward: when independent scrutiny is reduced, poor practice becomes easier to miss, easier to justify and harder to challenge.

We know from repeated inquiries, safeguarding reviews and scandals that closed cultures develop when decisions go unchallenged and when the voices of people receiving care are not heard independently.

Advocacy has often been the mechanism that exposes these issues.

For example:

• A young person was prevented from attending swimming activities because a taxi company refused to transport their wheelchair. The care home accepted the decision and simply stopped the activity. An advocate challenged the restriction through conditions attached to the DoLS authorisation, resulting in a solution being found.

• A care home introduced supervised visits between a husband and wife because staff believed the visits were upsetting him. An advocate challenged the restriction and established that the distress was not caused by the visits themselves, but by having to say goodbye when his wife left.

Neither of these situations would necessarily have been identified as abuse, neglect or poor care. In many respects, everything else was working well. Staff were caring, the placements were stable, and the individuals may well have appeared content.

Yet both examples involved unnecessary restrictions that diminished quality of life, relationships and human dignity.

In the emerging landscape following this judgment, many people in similar situations may be viewed as consenting to their arrangements. If there is no deprivation of liberty authorisation, there may be no advocate, no independent scrutiny and no automatic route to challenge decisions that gradually narrow a person's world.

The risk is not simply that rights are restricted.

The risk is that restrictions become normalised.

History teaches us that harm rarely begins with obvious abuse. More often it starts with small restrictions that nobody questions, decisions that nobody challenges and voices that nobody hears.

Independent scrutiny is not an administrative burden. It is one of the most effective protections we have against that process.

Human Rights Concern #4. Relative Normality.

The Supreme Court says that when deciding whether someone is deprived of liberty, courts should not simply apply a mechanical test. Instead, they should look at the person's overall situation and context. In doing so, the Court states "The relative normality of the placement is also a relevant factor..."

In the sanitised environment of many ivory offices, it makes logical sense to consider what is normal and what might be not normal.  We know of many a young autistic person, living at home with their parents who supervise him closely, help him cross roads, manage his money and accompany him in the community

It is hard to justify subjecting this family through the same rigour, expense, intrusive paperwork and process that was the DoLS framework when fundamentally, this level of support is entirely ordinary family life for someone with these support needs.

However the phrase ‘relative normality’ for many human rights practitioners speaks to a much darker scenario.  Advocates are often working in institutional settings where restrictive practices, have been justified – surveillance, mechanical restraints, ‘cared’ through hatches, denied contact with family and friends – and considered ‘normal’. 

HL 

The case that triggered the creation of DoLS was that of HL: an autistic man with profound learning disabilities who was admitted to hospital informally. He never attempted to leave. He did not actively resist.

Staff considered the arrangements therapeutic and necessary.  But when family visited him they saw neglect, trauma and harm and had to fight the state to bring him home.

Steven Neary – "For his own good"

Steven Neary an autistic young man who lived happily with his father. After a period of respite care, the local authority decided he should remain in a support unit rather than return home.

Professionals believed he was safer there, the risks were better managed there and fundamentally the placement was in his best interests

The reality was very different.

Connor Sparrowhawk ("Laughing Boy")

Connor died in an NHS assessment and treatment unit after significant failures in care. Subsequent investigations highlighted issues around institutional assumptions, lack of challenge, poor scrutiny and failure to hear family concerns.

Looking across these cases, the original justification for restrictions is often remarkably similar and you will hear:

• "It's in their best interests."

• "They are settled."

• "They don't object."

• "The risks are too high."

• "The placement is working."

• "The professionals agree."

Yet when independent scrutiny is applied, the picture can change dramatically.

These families, and countless others, have suffered greatly because restrictions have become normalised – and justified as necessary. 

So What Do We Do Next?

The advocacy sector now faces a choice. We can spend the next few years lamenting what has been lost. Or we can build something better.

If I were in the privileged position of leading an advocacy service, the first thing I would do is shift resources away from Relevant Person's Representative work and into Care Act advocacy. The second thing I would do is sit down with commissioners and start a conversation about residential visiting advocacy.

Not because advocacy is becoming less important.

Because it is becoming more important than ever.

The Missed Potential of Care Act Advocacy

Many people might be surprised to learn that a significant proportion of those who had an IMCA or a paid RPR should also have been receiving Care Act advocacy.

If a person lacks capacity to engage with decisions about their care and support, and the State is arranging that care, Care Act advocacy is often available. The problem is not the legislation. The problem is how we have chosen to deliver it.

Too often, Care Act advocacy has been reduced to a series of isolated interventions.

A referral arrives.

An advocate attends a meeting.

A decision is made.

The case is closed.

Months later the process starts all over again with a different advocate.

That was never the vision.

The Care Act was built around a cycle of assessment, planning, review and change. It was designed to support ongoing involvement, not repeated introductions.

Imagine something different. Imagine advocates staying involved long enough to genuinely know people. Long enough to recognise when somebody is unhappy before they say the words. Long enough to understand what matters to them. Long enough to recognise the difference between contentment and resignation. Long enough to know what gives them joy.

Surely if any profession should understand a person's hopes, preferences, relationships and dreams, it should be ours.

Care Act advocacy has the potential to become the most powerful human rights safeguard in adult social care.

But only if we stop treating it as a meeting and start treating it as a relationship.

The Future Could Be Residential Visiting Advocacy

Children's advocacy has understood something important for decades.

Young people living in residential care should not have to ask for advocacy before they can access it. Advocacy goes to them.

Advocates routinely visit children's homes, building relationships, listening, noticing concerns and helping young people speak up long before issues become crises.

Adult social care deserves the same ambition.

Imagine every care home, mental health ward, nursing home, supported living service and extra care scheme welcoming advocates through their doors every fortnight.

Not to investigate.

Not to inspect.

Not to complete paperwork.

Simply to be present.

To spend time with people.

To listen.

To notice.

To spot the person who is quietly miserable.

To identify the restriction that everyone else has stopped seeing.

To ask the question nobody else is asking.

This would not be expensive. It would reassure commissioners that human rights are being actively protected. It would reassure providers that closed cultures are being challenged before they take root. Most importantly, it would ensure that people who are at risk of being forgotten are seen.

The future of advocacy cannot be built solely around responding to referrals. It must be built around presence, relationships and human connection.

The challenge now is not how we preserve the old safeguards.

The challenge is how we create better ones.