The Supreme Court's judgment on deprivation of liberty

You may be aware that the Supreme Court has recently issued a judgment which significantly changes the legal approach to determining whether a person is deprived of their liberty. The judgement can be seen here A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 o….

We would encourage you to familiarise yourselves with the judgment and carefully consider the implications for your services and practice. Please see the following links for further information: CQC statement on the Supreme Court's judgment on deprivation of liberty - Care Quality Commission and 2026-UKSC-16-Summary-for-website.pdf.

We ask that you refer to this updated position when making any new referrals to the DoLS team.  In addition, as the change came into effect immediately from 2 June, please review any recent DoLS referrals you have made. You should consider whether, in light of this revised approach, any of these referrals may no longer be appropriate.

We hope this offers reassurance whilst we wait for additional National guidance to be disseminated.  At this stage we don’t have further information, but if you have a specific query, you can contact the MCA DoLS Duty Team at Dolforms@essex.gov.uk

Essex County Council - Provider Hub
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Both the workshop discussions and the 'must haves' have highlighted the need for greater clarity about the direction and future shape of the market. It should be noted that this was an issue raised as much, if not more, by officers as by providers. We think providers and officers are asking for three issues to be addressed about the future:

  • The future shape of the market -  this includes shape/look/feel and makeup of the market; likely developments and changes linked to new opportunities; innovation and improvements required; workforce implications; and new business opportunities;
  • Setting out more clearly defined expectations -  this is in relation to overall standards and quality (performance) and, crucially, is about what is affordable and achievable in the current climate; and
  • Clarifying issues around costs - this includes much greater transparency about pricing, top-ups and other details related to financial matters which directly affect providers.

 In raising these issues there was sense that the absence of any clarity and transparency around them has allowed confusion and suspicion to arise. This, in turn, has contributed to increasing the level of mistrust between providers and ECC.  The lack of clarity is also making an already a challenging environment even harder to work in for both parties.

Setting out the future direction of the market will require ECC to be much clearer about what it sees as the future shape of the market and for it not to be afraid to 'pull' providers into these discussions. This work has to be driven by 'strategists' and commissioners, not procurement and commercial activity. For ECC, clarification of its commissioning intentions in the short to medium term, and articulating how they anticipate this will impact upon providers, will also be important.  In addition, ECC needs to set out where the opportunities lie to shape and deliver these.  In response, providers will have to get better at managing change, show more flexibility and understand that, at times, ECC will not be able to clarify every single issue in the way providers would like.

Providers are clear that, in their view, what ECC specifies from them in terms of quality and standards at the moment is not affordable.  This is an area of tension, with providers very often left in the middle having to explain to relatives and friends of SUs why some things are not possible.  Conversely ECC remains concerned that poor quality providers, although a relatively small percentage of the whole market, are still considered too numerous and take up a disproportionate of time to manage and distract resources from supporting the wider market. They consider that for many of these the issue is not a lack of resource or understanding about what is required, but just poor management and competence.  There is a need for both parties to examine more closely their performance expectations and to bring a greater level of understanding and sharpness as to what is achievable.  This could possibly be achieved by using the 'four box model' of quality which was agreed with providers earlier this year - see Appendix K.

Whilst there is an overriding issue about the cost of care, that was not in the scope of this project. However, tensions over money have the potential to undermine relationships and need discussing in the manner described in this review i.e. openly, honestly and respectfully. The key issue here is that providers want clarity, an understanding about how fee levels and pricing mechanisms are determined by ECC, and assurances that they are being applied equitably and, where possible, set out over the medium term. 

Last updated: 20/10/2021