In our previous blogs, we looked at the Supreme Court’s decision of 2 June 2026 and the subsequent statement from the Care Quality Commission (CQC).  Together, those updates highlighted both the significance of the move away from the Cheshire West  “acid test” and the uncertainty this creates for providers applying a more nuanced, fact‑sensitive approach in practice.

The Department of Health and Social Care (DHSC) has now issued initial guidance on the implications of the judgment. 

DHSC – Key points for providers 

The guidance broadly reflects the “holding” position already signalled by the CQC. It stops short of providing a definitive framework for how the new test should be applied in practice and confirms that more detailed guidance will follow.

A central feature of the guidance is the approach to existing Deprivation of Liberty Safeguards (DoLS) authorisations. The DHSC confirms that:

• Existing authorisations should be reviewed as soon as practicable; but
• Leaving them in place pending review will not, of itself, amount to an unlawful deprivation of liberty.

This pragmatic approach recognises the scale of the task facing the sector and supports a measured, prioritised review process, rather than immediate wholesale reassessment.

The guidance also confirms that the number of situations where a DoLS application will be required should significantly reduce, but recognises that in the short-term, providers may need to err on the side of caution and that where there is any doubt whether a DoLS is required, an application should be made as before.  

Some practical themes emerge:

• Avoid unnecessary urgency – there is no expectation that all existing authorisations are revisited immediately.
• Continue to apply the Mental Capacity Act 2005 – core principles, including best interests and engagement with wishes and feelings, remain unchanged.
• Focus on evidence and reasoning – decisions under the new test must be clearly recorded and justified.
• Guidance should be sought in marginal cases - Practitioners should continue to use DoLS processes and court applications where there is any doubt as to whether arrangements constitute a deprivation of liberty.

Next steps

At this stage, the message for providers is one of proportionality and caution.

The DHSC’s confirmation that existing DoLS authorisations can remain in place pending review provides important reassurance. However, the expectation that reviews will take place “as soon as practicable” means this is not a static position.  Providers will need to apply the new approach in any situations where new care and support plans are put in place which amount to a deprivation of liberty, but under the new test this should apply in a much lower number of situations than before.

Until further guidance emerges, providers should:

• Begin aligning their practice with the new legal position; and
• Share the key messages from the ruling throughout their organisations and ensure the workforce understand the new definition of deprivation of liberty; and
• Carry out an initial update to procedures and policies to ensure they reflect the new framework; and
• Take a well-evidenced case‑by‑case approach to decision making; and
• Seek advice where there is genuine uncertainty.

We will continue to monitor developments as the position becomes clearer.

For more information and advice on this topic or for support with any of the above, please contact Molly Quinney or a member of the regulatory team.