Beyond DoLS: Is It Time to Rethink the Role of Independent Advocacy?
The Supreme Court's latest DoLS judgment has changed the legal conversation. But does it also highlight a wider role for independent advocacy in identifying people's wishes, feelings and experiences?
Understanding the individual
The Supreme Court judgment of 2 June 2026 has prompted widespread discussion about the future of the Deprivation of Liberty Safeguards (DoLS).
Much of that discussion has centred on one question: who is now deprived of their liberty?
Professionals across health and social care are working through the implications of the judgment. Before any legal test can be applied, someone first needs to understand what life is actually like for the individual concerned. That raises another question: who is routinely identifying a person's wishes, feelings and lived experience?
Practitioners are now expected to consider wishes, feelings, objection, understanding and valid consent. Much of that information cannot be gathered from care records alone. It comes from spending time with the person through conversation, observation and independent engagement.
Who is having those conversations?
Across England and Wales, thousands of people live in care homes, nursing homes, supported living services, Shared Lives arrangements, extra care housing and other community-based settings.
Many receive excellent care. However, not everyone has active family involvement or regular local authority contact. Some people are unbefriended, some have no entitlement to an IMCA and others may never meet a Best Interests Assessor. For some, months or even years could pass before an independent person asks, 'How do you feel about living here?'
Identifying wishes is different from applying the law
Independent advocacy has always helped people express their wishes and ensure their voices are heard. Identifying wishes, feelings and experiences is different from determining their legal significance. An advocate may identify objection. Applying the legal framework remains the responsibility of the appropriate decision-maker. As the legal framework becomes more nuanced, meaningful independent engagement before legal conclusions are reached may become increasingly valuable.
Is there a gap in the current system?
Managing authorities are responsible for recognising when a person's circumstances require further consideration, while supervisory bodies determine whether the statutory safeguards apply. The challenge is recognising the people who need that consideration in the first place. A person may tell an advocate they want to go home despite never saying so to staff, or appear compliant without fully understanding their circumstances. These are not simply questions about legal thresholds. They are questions about how rights are recognised in practice.
Could independent advocacy play a wider role?
Independent advocacy already provides an important safeguard. The Supreme Court judgment may now encourage discussion about whether there is also a place for more proactive, independent engagement with people living in long-term care. This would not replace statutory safeguards or Best Interests Assessments. It would help ensure that someone's wishes, experiences and understanding are explored before legal decisions become necessary.
Looking beyond the legal test
The Supreme Court judgment has undoubtedly changed the legal framework for deprivation of liberty. It may also provide an opportunity to broaden the conversation. Before wishes, feelings, objection, understanding and consent can influence legal decision-making, someone must first identify them. That may become one of the most important contributions independent advocacy can make in the years ahead.
