In our recent blog, Supreme Court redraws the boundaries of deprivation of liberty: what this means, we explored the immediate legal implications of the Supreme Court’s decision of 2 June 2026 and its move away from the bright-line “acid test” established in Cheshire West.

Since then, the Care Quality Commission (CQC) has issued a short statement, intended to clarify what this means for providers.

The CQC describes the judgment as a “significant development in case law”, reflecting what many providers are already experiencing: that the decision “may cause uncertainty” across the sector, for providers, commissioners and people who use services alike.

While this acknowledgement is important, the statement is notably light on practical direction. Instead, it confirms that:

 “We will adopt a proportionate approach in our assessments while we work with partners in the health and care system to determine the practical impact of this revised position.”

What that “proportionate approach” will look like in practice remains unclear.

In the absence of detailed guidance, the CQC’s focus is on reinforcing existing and well-established obligations. It notes that providers should be able to demonstrate that they continue to:

• Consider, 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 and reflect each individual’s views about their care;
• Comply with the Mental Capacity Act 2005, including acting in a person’s best interests, irrespective of whether they are deprived of their liberty; and
• Continue to meet the requirements of the Health and Social Care Act 2008 and associated regulations.

The CQC statement also clarifies that:

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

The overall impression is that the CQC is, at this stage, adopting a holding position. It confirms that it is working with partners to understand the practical implications of the judgment and to develop a more settled position – something that will be welcomed by many. 

For now, providers are left to navigate a changed legal test with limited regulatory steer.

Until more detailed guidance emerges, our view is that the emphasis must be on careful, case-specific and well-evidenced decision-making, grounded in a clear understanding of the individual’s wishes and overall circumstances.

Although the new approach applies immediately, it remains difficult at this stage to identify scenarios where a deprivation of liberty would arise under the new test but would not also have met the Cheshire West criteria. In that sense, the cohort of individuals currently lacking appropriate authorisation as a result of the change in law is likely to be very limited.

The more immediate effect is therefore likely to be a narrowing, rather than an expansion, of what requires authorisation. Against that backdrop, existing DoLS authorisations that remain in a person’s best interests and unchallenged are unlikely to require urgent review at this stage. 

As the position develops, we will continue to provide further updates on what this means in practice. In the meantime, providers should adopt a measured approach in the absence of detailed guidance, and seek specific advice where uncertainty remains.

For more information and advice on mental capacity issues, please contact Molly Quinney or a member of the regulatory team.