7.2 Deprivation of Liberty Safeguards

1. Deprivation of Liberty under Article 5 of the European Convention on Human Rights

Under Article 5 of the European Convention Rights (‘ECHR’), a person is deprived of their liberty if three elements are satisfied:

1. an objective element: a person’s confinement in a restricted place for a not negligible period of time;
2. a subjective element: that the person has not given valid consent to their confinement;
3. imputability to the state: that the state is responsible, directly or indirectly for the confinement.

2. The Deprivation of Liberty Safeguards

In England and Wales, the Deprivation of Liberty Safeguards (DoLS) are used to check that actions which limit the liberty of a person. who does not have the capacity to consent to this, are done in the least restrictive way necessary to keep them safe and that it is in their best interests.

DoLS provides a process for a deprivation of liberty in a hospital or registered care home to be made legal through either ‘standard’ or ‘urgent’ authorisation processes. These processes are designed to prevent the making of arbitrary decisions to deprive a person of their liberty. They also give people a right to challenge deprivation of liberty authorisations.

As well as hospitals and registered care homes, a deprivation of liberty can also occur in domestic / home type settings where the state is responsible for enforcing such arrangements. This may include a placement in a supported living arrangement in the community and in a person’s own home. Where a deprivation of liberty occurs outside of a hospital or registered care home, it must be authorised by the Court of Protection.

3. Identifying Deprivation of Liberty

The Supreme Court in A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 (UK Supreme Court, June 2026) ruled on what counts as a deprivation of liberty under article 5(1) of the European Convention on Human Rights.  The Court reversed the previous Supreme Court ruling in P v Cheshire West and Chester Council which held that the ‘acid test’ for a deprivation of liberty was whether an individual was subject to ‘continuous supervision and control’ and ‘not free to leave’.

In the 2026 ruling, the Supreme Court held that:

• the starting point in assessing whether someone has been deprived of their liberty is the specific, concrete situation of the individual concerned;
• instead of the ‘acid test’, the assessment should be multifactorial and take account of a range of factors including the type, duration, effects and manner of implementation of the measure in question. No single factor is determinative. The approach should be practical and realistic;
• the required focus on the ‘concrete situation’ of the individual and the ‘realities of the situation’, taking account of the type of measure in question, means that it is relevant to have regard to the purpose of the measure, even though this is not decisive by itself;
• whilst a person may not have mental capacity to make decisions about their care and residence arrangements, if they have a basic level of awareness and consciousness of their living arrangements that is sufficient to enable them to know and communicate whether they are happy or unhappy with them, they may be treated as able to give or withhold ‘valid consent’ to confinement by an expression of their wishes and feelings. Where there is serious doubt, no inference of valid consent should be drawn;
• whilst the previous ‘acid test’ took no account of the type of setting, the normality of the circumstances in which an individual is cared for (eg the fact that they are living in their own home or in the community) is a relevant factor in assessing whether there has been a deprivation of liberty;
• where an individual is subject to innate limitations by reason of their own physical or medical condition, then some element of coercion or externally imposed restrictions which prevent them from exercising their fundamental right to physical liberty is likely to be required for it to constitute a deprivation of liberty.

This judgment is likely to result in a significant fall in the numbers of cases where an adult’s placement in a health or social care setting will require authorisation as a deprivation of liberty.

It is important l that all care providers are able to recognise when the care plan proposed might deprive a person of their liberty and then take the required action by applying for an authorisation to the supervisory body or Court of Protection (depending on the care setting).

Health and social care professionals must also know how to notify the supervisory body of deprivation of liberty which may be unauthorised.

4. Restrictions and Restraint

There is a difference between deprivation of liberty (which is unlawful, unless authorised) and restrictions on a person’s freedom of movement.

Restrictions of movement (if in accordance with the principles and guidance of the Mental Capacity Act – MCA) can be lawfully carried out in a person’s best interests, in order to prevent harm. This includes use of physical restraint where that is proportionate to the risk of harm to the person and in line with best practice.

Examples of restraint and restrictions include:

• using locks or keypads to prevent a person leaving a specific area;
• administration of certain medication, for example to calm a person;
• requiring a person to be supervised when outside;
• restricting contact with family and friends, including if they could harm the person;
• physical intervention to stop someone from doing something which could harm themselves;
• removing items from a person which could harm them;
• holding a person so they can be given care or treatment;
• using bedrails, wheelchair straps, and splints;
• requiring close supervision / monitoring in the home.

Any restrictions introduced should be the least restrictive required in the circumstances to keep the person safe and meet their needs.  Guidance from the LGA and ADASS Promoting Less Restrictive Practice: Reducing Restrictions Tool for Practitioners contains examples for care homes on situations they come across on a daily basis and provides advice on how they can reduce restrictions and the blanket support they may have in place.

5. Identifying Deprivation of Liberty: Care Providers

Care providers do not have to be experts about what is and is not a deprivation of liberty, but need to be able to recognise when a person might be deprived of their liberty  so they can take the required action.

If the living arrangements / Care Plan made for a person who lacks capacity amount to a deprivation of their liberty, it has to be authorised either by:

• the Deprivation of Liberty Safeguards (for hospitals / care homes); or
• the Court of Protection (for domestic settings such as supported living arrangements).

Any deprivation must be subject to regular independent checks.

6. Authorising Deprivation of Liberty

6.1 The managing authority

The managing authority manages the care of the adult concerned.

Where a managing authority proposes to deprive someone of their liberty, it should request authorisation to do this from the supervisory body (which, for care in a hospital or registered care home) is the local authority DoLS team). It can do this up to 28 days in advance of when it plans to deprive the adult of their liberty.

6.2 The supervisory body

The supervisory body supervises the process for assessment and signs off the final order.

The local authority where the person is ordinarily resident is the supervisory body for care homes and hospitals.

Applications to authorise a deprivation of liberty in the community are made to the Court of Protection

6.3 The assessment process: care home providers

The managing authority must fill out a form requesting a standard authorisation (see Department of Health and Social Care). This should be sent to the supervisory body (local authority in this instance), which has 21 days in which to decide whether the adult can be deprived of their liberty.

Before a local authority, as the supervising authority, can grant an authorisation they will arrange the following assessments:

• mental health assessment: to confirm whether the person has an impairment / disturbance in the mind or brain;
• eligibility assessment: to confirm the person’s existing or potential status under the Mental Health Act, and whether it would conflict with a DoLS authorisation;
• mental capacity assessment: carried out by either the mental health or Best interests assessor to determine the person’s capacity to consent to the care proposed;
• best interests assessment: to confirm whether deprivation of liberty is occurring, whether it could be avoided, and whether it is in the person’s best interest. They will also recommend, how long the authorisation should last and who should act as a person’s representative throughout the period of authorisation;
• age assessment: to confirm the person is at least 18 years of age; if a person is between the ages of 16 and 18 years of age, application needs to be made to the Court of Protection if they need to be deprived of their liberty;
• no refusals assessment: to confirm whether there is any valid advance decision which would conflict with the authorisation, or a person with a valid and registered Lasting Power of Attorney with authority over welfare decisions.

An Independent Mental Capacity Advocate may also be appointed during the assessment process if required.

If any of the required conditions are not met, a deprivation of liberty cannot be authorised. This may mean the care home or hospital has to change its care plan.

If all the conditions are met, the supervisory body must authorise the deprivation of liberty, for up to one year. The supervisory body must inform the adult and the managing authority in writing.

The restrictions should cease as soon as the adult no longer requires them; they do not have to be in place for the full period of the authorisation,

6.4 Urgent authorisation: care home providers

If it is believed an adult needs to be deprived of their liberty before the supervisory body can respond to a standard request, the managing authority can use an urgent authorisation. The managing authority can deprive a person of their liberty for up to seven days using an urgent authorisation. This can be extended for a further seven days by the supervisory body, but only if certain criteria are met (see Department of Health and Social Care forms).

Before granting an urgent authorisation, the managing authority should try to speak to the family, friends and carers of the person. Information they provide may assist in preventing the adult being deprived of their liberty. Efforts to contact family and friends and any discussions had with them should be documented in the adult’s case records.

7. Deprivation of Liberty in Community Settings

Applications to authorise a deprivation of liberty in the community are made to the Court of Protection. In most cases the authorisation is a paper-based application that should not require a court hearing.

8. Appointing a Relevant Person’s Representative

Everyone who is subject to a deprivation of liberty authorisation will be appointed a representative (called a Relevant Person’s Representative). This person will have frequent face to face contact with the person, and represent and support them in all related matters, including requesting a review or applying to the Court of Protection to present a challenge to a DoLS authorisation.

9. Reviews

The care home / hospital / domiciliary or supported living manager must monitor and review the adult’s care needs on a regular basis and report any change in need or circumstances that would affect the deprivation of liberty authorisation or any attached conditions. A DoLS review must be requested if:

• the adult (who is the ‘relevant person’) no longer meets any qualifying requirements;
• the reasons they meet the qualifying requirements have changed;
• it would be appropriate to add, amend or delete a condition placed on the authorisation due to a change in the adult’s situation;
• the adult or their representative has requested a DoLS review, which they are entitled to do at any time.

The supervisory body where necessary, will arrange for assessors to carry out a review of an authorisation when statutory conditions are met.

10. Alerting to Unlawful Deprivation of Liberty

If a person (professional or otherwise) suspects a person is being deprived of their liberty and it has not been authorised, they should first discuss it with the care home, hospital ward manager or domiciliary or supported living manager.

If the manager agrees the care plan involves deprivation of liberty, they should be encouraged to make a request for authorisation. Everyone should be satisfied the care plan contains the least restrictive option available to keep the person safe, and it is in the person’s best interests.

If the manager does not agree to make a request for a DoLS authorisation, the concerned person should approach the local authority or Court of Protection to discuss the situation and report the unlawful deprivation.

12.1 Relevant Chapters

Mental Capacity

Independent Advocacy

12.2 Relevant Guidance

Deprivation of Liberty Code of Practice 

Deprivation of Liberty Safeguards: Know Your Rights (ADASS)

Identifying a Deprivation of Liberty a Practical Guide (The Law Society)  

Mental Capacity Act and Deprivation of Liberty Safeguards (Care Quality Commission)

Mental Capacity Act / DoLS Codes of Practice Update (39 Essex Chambers)