Watchdog issues briefing on Supreme Court deprivation of liberty ruling

The Care Quality Commission has published a briefing on the Deprivation of Liberty Safeguards for providers in the light of a landmark ruling last month by the Supreme Court.

The CQC highlighted the significance of the judgment in P v Cheshire West and Chester Council and P & Q v Surrey County Council for deciding whether arrangements made for the care and/or treatment of an individual who might lack capacity to consent to those arrangements amount to a deprivation of liberty.

The briefing said that, following the Supreme Court judgment on 19 March, health and social care staff must be aware of how you should now judge whether a person might be deprived of their liberty.

The Commission said: “It is clear that the intention of the majority of the Supreme Court was to extend the safeguard of independent scrutiny.

“They said: ‘A gilded cage is still a cage’ and that ‘we should err on the side of caution in deciding what constitutes a deprivation of liberty’. They also highlighted that a person in supported living might also be deprived of their liberty."

The CQC noted: “It is certain that many more requests for authorisations under the deprivation of liberty safeguards will be made for people in hospitals or care homes, and that many more applications will be made to the Court of Protection for those in domestic settings with support."

The Commission said the DoLS only applied in hospitals and care homes but its document set out criteria that could help providers decide if there is a deprivation of liberty, in any setting.

A copy of the Commission’s briefing can be viewed here.

The Department of Health has also recently written to health and social care organisations following the Supreme Court ruling.

This letter called, amongst other things, for relevant staff and local authorities to take steps to review existing care and treatment plans for individuals lacking capacity to determine if there is a deprivation of liberty (following the revised test supplied by the court).

See also: Deprivations of Liberty: the key to the ‘gilded cage’ from 39 Essex Street – available now on Local Government Law TV.