The adult social care sector is no stranger to complexity. But when that complexity intersects with legal frameworks, particularly the Court of Protection, the Mental Capacity Act, and deprivation of liberty, the stakes become even higher.
Care England hosted a webinar with Helen Claridge a Partner at Hempsons exploring exactly these issues. The response was overwhelming. Attendance remained high for the full duration, engagement was strong throughout, and feedback was exceptionally positive. It was clear that this is not just a technical legal topic, it is a frontline operational reality for care providers across England.
If you were unable to attend live, the recording is now available, and it is well worth your time.
Why this topic is so important for providers
For many in social care, the Court of Protection can feel distant, intimidating, or even adversarial. But one of the most powerful messages from the session was that the Court of Protection is not designed to “catch providers out.” At its core, it exists to answer simple questions:
Does a person have capacity to make a particular decision? And if not, who should decide, and how?
Understanding that framework is not optional. It underpins decisions about residence, care planning, restrictive practices, funding disputes, hospital discharge, family objections, and community placements. It also sits at the heart of CQC scrutiny and regulatory risk.
This webinar unpacked the framework clearly and pragmatically, not as abstract law, but as something providers deal with daily.
Capacity: The gateway to everything
A central theme of the session was that capacity is the gateway to the Court of Protection. If a person has capacity, the Court has no jurisdiction. If they lack capacity, safeguards must follow.
The discussion clarified several misconceptions that commonly arise in care settings:
- Capacity assessments do not always require a psychiatrist or psychologist.
- There is no rigid rule about which professional must carry them out.
- What matters is that the assessor has the appropriate skill, knowledge and understanding of the decision being assessed.
This is especially important in environments where fluctuating capacity, dementia, delirium, or temporary impairments complicate matters.
The webinar did not oversimplify the issue, instead, it acknowledged that fluctuating capacity is one of the most challenging areas for providers. Courts approach it differently depending on circumstances. For providers, this reinforces the importance of robust, well-documented assessments and clear escalation when complexity increases.
Deprivation of liberty: Beyond the headlines
Much of the session focused on deprivation of liberty, an area that continues to generate confusion, anxiety and operational pressure.
The legal “acid test” remains:
- Is the person under continuous supervision and control?
- Are they free to leave?
- Do they lack capacity to consent?
But the real value of the session was in how these principles were applied to everyday practice.
It explored practical examples familiar to every provider:
- Locked doors
- Sensor mats
- CCTV
- Bed rails
- Door alarms
- Supervision levels
None of these automatically equal a deprivation of liberty. But taken together, they may.
This nuance matters. The webinar emphasised that deprivation of liberty is not about intent. A “gilded cage” is still a cage. Even if someone is content, even if care is excellent, the legal test remains objective.
That clarity is vital in a regulatory environment where documentation, justification and least restrictive practice are increasingly scrutinised.
When the Court of Protection becomes involved
One of the most reassuring parts of the webinar addressed a common fear: being “dragged into court”.
In practice, providers are rarely named as parties in Court of Protection proceedings. That is an important distinction. The Court recognises the financial and operational burden this would create.
However, providers are often involved in other ways:
- Providing care plans and records
- Attending roundtable meetings
- Supporting best interest discussions
- Responding to third-party disclosure orders
The session offered clear, practical advice: engage early, communicate clearly, and remain transparent. Most court processes are inquisitorial, not adversarial. They are designed to reach the right answer for the person at the centre, often referred to as “P” in proceedings.
Importantly, the webinar addressed the growing use of third-party disclosure orders, sometimes requesting extensive historical documentation. Rather than simply complying at great cost, providers were advised to engage proportionately and clarify what is genuinely required.
That kind of practical guidance is rarely found in written guidance notes. Hearing it discussed openly and pragmatically is precisely why the recording is so valuable.
Funding pressures and local authority delays
The webinar did not shy away from reality. It acknowledged the intense pressure facing local authorities, particularly in relation to deprivation of liberty safeguards.
Backlogs are well known. Legal authorities dramatically widened the scope of what constitutes a deprivation of liberty. Demand has outstripped system capacity for years.
But the key message was this: pressure elsewhere does not remove provider responsibilities.
If referrals or authorisation requests are not followed up, that absence of action will not sit well in court. Providers must continue to demonstrate that they have taken appropriate steps, even where system response is delayed.
This was not delivered as criticism, but as practical risk management advice.
The future: Liberty Protection Safeguards
The session also looked ahead. Liberty Protection Safeguards (LPS) remain uncertain but not dead. Consultation is expected in 2026. The Supreme Court is currently considering related matters.
If LPS is implemented, responsibilities may shift. Integrated Care Boards could take on greater roles. Care home managers may face new evidential expectations.
But one message was clear: whatever the framework, the fundamentals remain.
Capacity.
Best interests.
Least restrictive practice.
Clear documentation.
Good communication.
Those principles will not change.
Why you should watch the recording
This was not a dry legal lecture. It was an hour of grounded, applied insight tailored to social care realities.
It covered:
- How the Court of Protection works in practice
- When and why providers become involved
- What to do when families object
- How deprivation of liberty challenges unfold
- How to manage third-party disclosure requests
- The realities of fluctuating capacity
- Regulatory and reputational risks
- Practical steps to protect your service
Perhaps most tellingly, attendees stayed for the full duration. Questions were numerous and thoughtful. Feedback described the session as “phenomenal” and “perfect” in its coverage of complex ground .
That tells us something important: this is not theoretical. It is operationally relevant and strategically critical.
The bigger picture for the sector
Court of Protection activity intersects with:
- Hospital discharge disputes
- Funding disagreements
- Community access expectations
- CQC oversight of restrictive practice
- Family challenges to placements
- Reputational transparency in public hearings
Judgments are increasingly subject to transparency orders. Proceedings may be publicly reported. The legal, financial and reputational risks are real.
But so too is the opportunity.
Providers who understand the framework, engage early, document well, and demonstrate person-centred least restrictive care are far better placed, not just legally, but regulatorily and commercially.
A conversation we will continue
The strength of engagement suggests that this is not a one-off discussion. We anticipate further sessions, particularly as developments around LPS and Supreme Court judgments unfold.
For now, the recording provides an essential foundation.
If you are:
- A care home manager
- A supported living provider
- A domiciliary care leader
- A compliance or governance lead
- A director responsible for risk and oversight
…..this webinar is directly relevant to your role.
The Court of Protection should not be a mystery. Deprivation of liberty should not be feared, and capacity should not be treated as a tick-box exercise.
This session brings clarity, confidence and practical direction to one of the most complex areas of adult social care.
We encourage you to watch the recording, share it with your teams, and continue the conversation.
Because this is not just about law. It is about safeguarding people’s rights and safeguarding your organisation in the process.
Find out more – Listen to our webinar
A recording of the webinar ‘All things Court of Protection for social care providers‘ can be found below.
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