The Ministry of Justice’s most recent Family Court Statistics Quarterly, covering July to September 2025, recorded 5,828 orders made under the Mental Capacity Act 2005 in relation to deprivation of liberty. That figure is 21% higher than the same quarter the year before. Applications over the same period rose by 6%. The numbers are unusual enough to be worth pausing on, and they tell us something important about where this area of law has arrived in 2026.
Behind every one of those orders is a decision about whether an adult is free to leave the place where they live, free to refuse the care being offered, or free to make choices that others believe to be unwise. The legal framework that governs those decisions is, in theory, well established. In practice, it is one of the most misunderstood areas of law in England and Wales.
What Deprivation of Liberty Actually Means
A deprivation of liberty arises, in legal terms, when a person who lacks capacity to consent is subject to continuous supervision and control and is not free to leave their placement, whether that placement is a hospital, a care home, or a supported living arrangement. The test was set out by the Supreme Court in Cheshire West in 2014 and has shaped Court of Protection practice ever since.
Where the Deprivation of Liberty Safeguards regime applies, the question is dealt with administratively. Where it does not apply, or where the placement falls outside its scope, an application must be made to the Court of Protection. Either way, the person at the centre of the case has a right to challenge the deprivation under section 21A of the Mental Capacity Act, with non-means-tested legal aid available for that purpose.
So far, so clear. The complications start with the assumption that sits underneath the whole system.
The Misreading at the Heart of It
The Mental Capacity Act 2005 is built on a deliberately narrow framework. A person is presumed to have capacity unless it is established otherwise. Capacity is assessed in relation to a specific decision, at a specific time. The test, in sections 2 and 3 of the Act, turns on whether the person can understand the relevant information, retain it, weigh it, and communicate their decision.
Yet a striking proportion of deprivation of liberty cases proceed on a different assumption. A capacity assessment carried out for one purpose, often when the person is in hospital, is treated as conclusive across every decision the person will later face. A diagnosis of dementia, a learning disability, or acquired brain injury is read as a global loss of capacity rather than as a relevant clinical fact about a specific decision. The presumption of capacity gets quietly reversed in practice.
The consequences are not abstract. A person may be moved into residential care without proper exploration of whether they retain capacity to decide where to live. A package of care may be authorised without testing whether the person retains capacity to consent to the restrictions involved. Family contact may be restricted on the basis of assessments that were never designed to answer the question being put to them.
Why Specialist Advice Changes the Outcome
This is where the role of mental capacity solicitors becomes practically important. A solicitor experienced in this area reads capacity assessments critically. Was the assessment decision-specific? Was the right test applied? Was the person given the support they were entitled to under section 1(3) of the Act, to maximise their ability to make the decision themselves? Is the conclusion supported by the evidence, or is it leaning on a diagnosis to do work the Act says a diagnosis cannot do?
These questions matter because the decisions built on capacity assessments are consequential. If the assessment is flawed, the deprivation of liberty that follows may be unlawful. A specialist can challenge the assessment itself, instruct an independent expert where appropriate, and put the person’s own wishes, feelings, and values back at the centre of the case.
Where the Court of Protection Comes In
Deprivation of liberty disputes are, by their nature, Court of Protection work. The Court has the jurisdiction to authorise or refuse the deprivation, to scrutinise the evidence, and to ensure the least restrictive option is being pursued. For families and professionals facing these proceedings, having experiencedcourt of Protection solicitors involved at an early stage often determines whether the case is shaped around the individual or around the system’s preferred answer.
Court of Protection work is procedurally exacting. Hearings can be urgent. Evidence can be contested. Section 21A challenges, in particular, run on tight timeframes and reward early specialist input.
What the Figures Are Telling Us
The 21% rise in deprivation of liberty orders is not, in itself, evidence of a failing system. Some of it reflects better recording practices after the Family Court’s data system changed in mid-2024. Some of it reflects an ageing population and growing pressure on social care. But the volume should focus attention on whether the legal framework underneath each order is being applied as the Act intended.
The Mental Capacity Act 2005 was designed to be hard work. It refuses to treat people as categories. It places the burden of proof in the right place. It demands individualised, decision-specific judgement. When the system is busy, those demands become harder to meet, which is exactly when scrutiny matters most. For the solicitors who specialise in this work, and for the people whose liberty depends on it being done properly, the figures are a reminder that volume cannot be allowed to dilute the standard.
