Care Quality Commission issues statement on what Supreme Court ruling on deprivation of liberty means for providers

The Supreme Court judgment overturned its own ruling in 2014 in Cheshire West, which it said was wrongly decided.

In a statement the CQC said the was “a significant development in case law”, setting out a new approach to establishing whether a person may be deprived of their liberty.

It added that it is discussing the ruling with the Department of Health and Social Care (DHSC) and other key partners.

In the meantime it has sought to set out what the judgment means for providers, saying: “The judgment has immediate effect. This means that providers need to familiarise themselves with this legal development and adjust their practice accordingly.

“We recognise that this judgment may lead to questions about how the different factors should be interpreted and applied in practice. Where appropriate, providers may need to obtain legal advice to ensure that they are compliant with the law while they are waiting for any official guidance to be published.”

The CQC said it would therefore adopt a proportionate approach in its assessments while it works with partners in the health and care system to determine the practical impact of this revised position.

The regulator said its assessments would still focus on ensuring that providers continue to:

• demonstrate that they are considering, on a case-by-case basis, whether an authorisation to deprive someone of their liberty may be required
• provide person-centred care, using effective ways to gather the views of each person using the service about their care
• meet the requirements of the Mental Capacity Act 2005, including acting in a person’s best interests, irrespective of whether they are deprived of their liberty.

Providers are still required to comply with the requirements set by the Health and Social Care Act 2008 and associated regulations, the CQC said.

“It is important to note that:

• the definition of ‘valid consent’ does not apply for the purposes of determining whether a person is consenting to their care and treatment
• there is no change to other requirements of the Mental Capacity Act 2005 and Regulation 11 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.”