The Care Quality Commission (CQC) has issued guidance to health and social care providers following a landmark Supreme Court judgment that changes the legal test for determining whether a person is deprived of their liberty.
In a statement published on 8th June 2026, the CQC acknowledged that the ruling in A Reference by the Attorney General for Northern Ireland, handed down on 2nd June 2026, is likely to create uncertainty across the sector. The judgment takes immediate effect and introduces a new approach to assessing deprivation of liberty.
The CQC said it is working with the Department of Health and Social Care and other national partners to understand the full implications of the decision and to support the development of further guidance.
While recognising that providers may have questions about how the judgment should be applied in practice, the CQC urged organisations to familiarise themselves with the new legal position and seek legal advice where appropriate.
The CQC said it would take a "proportionate approach" during this transitional period, while emphasising that providers' existing responsibilities remain unchanged. Providers should continue to:
- Assess, on an individual basis, whether authorisation to deprive a person of their liberty may be required.
- Deliver person-centred care and support.
- Ensure the views of people using services are sought and considered when making decisions about care arrangements.
- Act in accordance with the Mental Capacity Act 2005 and continue to make decisions in a person's best interests where necessary.
The regulator also stressed that providers must continue to comply with the requirements of the Health and Social Care Act 2008 and associated regulations.
Importantly, the CQC clarified that the Supreme Court's revised definition of "valid consent" does not affect how providers determine whether a person is consenting to care and treatment. It confirmed that there have been no changes to the requirements of the Mental Capacity Act 2005 or Regulation 11 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.
The CQC said it will continue to work with government and sector partners as further guidance on the implications of the Supreme Court's decision is developed.
Source: CQC
Keep up to date and join us:
Deprivation of Liberty: Looking Towards the Liberty Protection Safeguards
Thursday 26th November 2026 | Virtual, Online | 5 Hours CPD
This conference will focus on improving practice within the current Deprivation of Liberty Safeguards system, while preparing health and social care professionals for recent legal changes and prepare your organisation for the evolving deprivation of liberty landscape.
