This section provides information about what action a practitioner should take if they are concerned that an adult is potentially being unlawfully deprived of their liberty. For more general information about applying the Deprivation of Liberty Safeguards (DoLS) in practice, staff should refer to their organisation’s DoLS guidance / policy and procedures. Staff may also contact the local authority specialist DoLS teams if they need further advice or information. Details are available on the local council websites:

RELEVANT CHAPTERS

Mental Capacity

Independent Advocacy

RELEVANT GUIDANCE

Deprivation of Liberty Safeguards: Code of practice to supplement the main Mental Capacity Act 2005 Code of Practice

Department of Health Advice Note (28 March 2014)

Identifying a deprivation of liberty: a practical guide – summaries of key cases, Law Society (2015)

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

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

Please note: The Liberty Protection Safeguards (LPS) were introduced in the Mental Capacity (Amendment) Act 2019 and proposed a new system for protecting people aged 16 years and above who lack capacity to consent to care and treatment and who need to have their liberty deprived. However, in April 2023, the Department of Health and Social Care announced that the LPS will not now be implemented before the next General Election (which must be held, by law, no later than 28 January 2025).

July 2023: A link has been added to Mental Capacity Act / DoLS Codes of Practice Update published by 39 Essex Chambers, as above.

1. Deprivation of Liberty Safeguards

The deprivation of liberty safeguards (DoLS) is a statutory process, as required by the Mental Capacity Act 2005 (MCA) to provide legal protection for individuals (18 years and above) who are, or may become, deprived of their liberty within the meaning of Article 5 of the European Court of Human Rights (ECHR) within a hospital or care home.

Schedule 1, Part 1, Section 5(4) of the Human Rights Act, 1998, states that ‘everyone who is deprived of his [their] liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his [their] release ordered if the detention is not lawful’. The Deprivation of Liberty Safeguards Code of Practice, paragraph 1.3 states, ‘the safeguards provide for deprivation of liberty to be made  lawful through ‘standard’ or ‘urgent’ authorisation processes. These processes are designed to prevent arbitrary decisions to deprive a person of liberty and give a right to challenge deprivation of liberty authorisations’.

2. Identifying Deprivation of Liberty

In 2014 an important ruling by the Supreme Court (P v Cheshire West and Chester Council and P&Q v Surrey County Council, March 2014) held that 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. These must be authorised by a Court of Protection order where a deprivation of liberty occurs outside of a hospital or registered care home.

It is crucial that all care providers (hospitals, care homes, domiciliary care providers and day services) can recognise when a person might be deprived of their liberty by applying the acid test (see Section 3, The Acid Test below) and take the required action. If the deprivation of liberty is occurring or is going to occur within a hospital or care home then an authorisation is required by submitting an application to the supervisory body. Where a deprivation of liberty may be occurring in situations outside of hospitals or care homes, authorisation can only be sought by way of an application to the Court of Protection.

Identifying a deprivation of liberty must also be identifiable to associated health and social care professionals, and steps must be taken to notify the supervisory body of a potential unauthorised deprivation of liberty.

3. The Acid Test

The Supreme Court clarified that there is a deprivation of liberty where the person:

  • is under continuous supervision and control; and
  • is not free to leave;
  • lacks capacity to consent to these arrangements; and
  • whose confinement is the responsibility of the State.

The Court held that factors not relevant to determining whether there is a deprivation of liberty include:

  • the person’s compliance or lack of objection;
  • the reason or purpose behind a particular placement; and
  • the extent to which it enables them to live a relatively normal life for someone with their level of disability.

This test is far broader than those set by previous judgements, so that disabled people should not face a tougher standard for deprivation of liberty than people who are not disabled.

See also Deprivation of Liberty Safeguards: At a Glance (SCIE) 

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 MCA) can be lawfully carried out in someone’s best interest, 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. Appropriate use of restraint falls short of deprivation of liberty and is considered as being permissible restraint falling short of a deprivation of liberty.

When considering the level of restriction or restraint imposed upon the person, it is important to look at a whole range of factors arising in each individual case such as the type, duration, effects and manner of implementation of the restrictions in question (Guzzardi v Italy 1980).

Neither the MCA nor DoLS can be used to justify the use of restraint for the protection of members of the public, members of staff, or other service users or patients.

Examples of restraint and restriction 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;
  • the person having to stay somewhere they do not want;
  • the person having to stay somewhere their family does not want.

Practice guidance

Advice from the Department of Health, 2014 states that staff should be aware of the following areas:

  • Mental Capacity Act principles: the five principles and specifically “considering less restrictive arrangements” principle (see Mental Capacity chapter);
  • Restrictions and restraint: when designing and implementing new care and treatment plans for individuals lacking capacity, be alert to any restrictions and restraint which may be of a degree or intensity that mean an individual is being, or is likely to be, deprived of their liberty (following the acid test supplied by the Supreme Court);
  • Less restrictive alternative: where a potential deprivation of liberty is identified, a full exploration of the alternative ways of providing the care and/ or treatment should be undertaken by the allocated worker, in order to identify any less restrictive ways of providing that care which will avoid a deprivation of liberty.
  • 16-17 years olds: A Court of Protection judgement – Birmingham City Council v D (January 29, 2016) – widens the acid test to apply to 16 and 17 year olds who lack capacity as the court determined that within common law ‘parental responsibility’ could not authorise the confinement of a young person which amounts to a deprivation of liberty Therefore, it widens the accountability of the State in relation to the acid test, to apply to all young persons (aged 16-17yrs) who may be deprived of their liberty in the community that the State has a duty to authorise. This does not just apply to persons who are in receipt of a package of care or an assessment, but anyone “who lacks capacity to decide on their place of care and residence, is under continuous supervision and control and is not free to leave.” This judgement, therefore, widens the acid test to include solely private arrangements.

5. The Deprivation of Liberty Safeguards Process

There are two types of authorisation: standard and urgent. A managing authority must request a standard authorisation when it appears likely that within 28 days, someone will be accommodated in a care home or hospital in circumstances that amount to a deprivation of liberty. If the person is already subject to circumstances which amount to a deprivation of liberty, the managing authority must give itself an urgent authorisation which lasts for 7 days.

5.1 Making an application for a standard authorisation

There are several stages involved in authorising a deprivation of liberty.  It is the local authority’s legal duty, as supervisory body, to ensure that where a person is being deprived of their liberty in a hospital or a care home, or a deprivation of liberty is being proposed, that steps are taken to safeguard them. This only applies to people where they are ‘ordinarily resident’. The supervisory body organises and oversees the entire process for authorising deprivation of liberties that occur in a care home or hospital.

Annex 1 in the DoLS Code of Practice provides an overview of the legal process that is initiated upon receipt of an application for a standard authorisation.

Overview of the Deprivation of Liberty Safeguards Process Flowchart (click on the image to enlarge it)

Diagram of the overview of the deprivation of liberty safeguards process.

The managing authority (the hospital or care home) must fill out a Form 1 Deprivation of liberty safeguards: resources – (gove.uk) requesting a standard authorisation. This should be sent to the supervisory body, who will then decide whether the person meets the necessary requirements for a standard authorisation to be granted or not granted.

5.2 Managing authority granting an urgent authorisation

The managing authority must decide whether they need to grant themselves an urgent authorisation in addition to their application for a standard authorisation.

An urgent authorisation enables the managing authority to lawfully deprive the relevant person of their liberty for a maximum of seven days where certain criteria are met. This can be extended for a further seven days, but only by the supervisory body if certain criteria are met (see Department of Health and Social Care forms).

Before a managing authority  grants itself an urgent authorisation, it must reasonably believe a standard authorisation would be required within seven calendar days and seek to obtain a standard authorisation also.

Before granting an urgent authorisation, the managing authority should try to speak to the family, friends and carers of the person and inform the person managing the person’s care. 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 and on the urgent authorisation. The managing authority also need to ensure that they provide up to date contact information of friends / family / carers / advocates / allocated worker and other professionals on the urgent authorisation form when they make the referral or give themselves an urgent authorisation.

6. The Assessment Process

Before the supervisory body can grant an authorisation they will arrange the following assessments to be completed:

  • 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 this would normally be in a hospital setting.
  • mental capacity assessment: carried out by either the mental health or best interest assessor to determine the person’s capacity to validly consent to their current care arrangements;
  • best interest assessment:  confirms whether deprivation of liberty is occurring, whether it could be avoided, and whether it is in the person’s best interests. 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 for DoLS. If a person is between the ages of 16 and 17  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.

The assessments must be completed by specially trained professionals.

An Independent Mental Capacity Advocate (IMCA) may also be appointed during the assessment process if required if the person does not have any family / friends or other non-professionals involved (see Independent Advocacy chapter).

7. Granting or Not Granting a Standard Authorisation

If any of the requirements are not met, deprivation of liberty cannot be lawfully granted. This will require  the care home or hospital  to review the current care regime in order to lessen the restrictions which amount to a deprivation of liberty. If, upon review this is not possible, authorisation would need to be sought from the Court of Protection by either the hospital (if that is where the person is being deprived of their liberty) or, the funding authority for all other care packages (for example, local authority or Integrated Care Board (ICB) – where the ICB are either the greater contributor towards funding the care arrangements or are totally funding the care arrangements). In situations where the car package amounting to a deprivation of liberty are arranged and funded by the person or their family, then the local authority should be notified so that they can consider what actin is required to either lessen the restrictions or seek authorisation via the Court of Protection.

However, under the DoLS process If all six requirements are fulfilled, the supervisory body must grant the deprivation of liberty authorisation, for up to a maximum one year. The supervisory body must inform the person subject to the authorisation , those consulted, and the managing authority in writing.

The restrictions should cease as soon as the person no longer requires them; they do not have to be in place for the full period of the authorisation. If it is established that the person no longer meets any of the qualifying criteria for DoLS authorisation, the managing authority must seek a part 8 DoLS review by completing the Form 10 review form and submitting it to the relevant supervisory body DoLS Team.

At the end of the authorisation period, if it is believed the adult still needs to be deprived of their liberty, the managing authority must submit a Form 2 further request  seeking a standard authorisation.

8. Conditions and Recommendations

The best interests assessor can recommend certain conditions be applied to the standard authorisation. The supervisory body are responsible for issuing the recommended conditions if they agree with them or can issue ones of their own on the authorisation, which must be fulfilled by the managing authority.

It is ultimately the supervisory body’s responsibility that any conditions attached to a DoLs authorisation is complied with.

The best interests assessor or supervisory body can also give recommendations to the local authority or organisation managing a person’s care relating to the deprivation of liberty.

9. Appointing the Relevant Person’s Representative

Everyone who is subject to a deprivation of liberty standard authorisation will be appointed a Relevant Person’s Representative (RPR). They must maintain 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.

If there is no family member, friend, or informal carer suitable to be the person’s representative, the DoLS office will appoint a paid representative. Their name should be recorded in the person’s health and social care records.

They have the right to request the advice and support of a qualified IMCA (see Independent Advocacy chapter).

For the purpose of seeking an authorisation regarding a community deprivation of liberty outside of care homes and hospitals, the nomination of a representative is different to that under the DoLS. The purpose of their role is to support the person’s wishes, beliefs and any other matters that the person would want to be considered when  deprivation of liberty authorisation is being sought through the Court of Protection. In Re KT & others, which was heard before the Court of Protection, Mr Justice Charles approved the use of general visitors to act as Rule 3A Representatives when there is no one else – such as family members or advocates – available to act for the person who is the subject of the proceedings. General visitors are commissioned by the Court of Protection to visit the person and others involved in the case, and report back their findings. Appointing a general visitor safeguards the rights of the person in the proceedings.

It is also the responsibility of the Representative or Paid Representative to ensure that any conditions attached to a DoLs authorisation are complied with and report this back to the Court.

See Chapter 7 DoLS Code of Practice for more information on the role of the RPR.

10. Reviewing the Standard Authorisation

This is also known as Part 8 DoLs Review. The care home / hospital (managing authority) 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. The home / hospital must request a DoLS review 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. Statutory DoLS reviews do not replace health or social care reviews.

A review of the DoLS requirements and or conditions can be undertaken, if necessary, at any time during an authorisation period.

10.1 Where the relevant person ‘objects’ to being deprived of their liberty in a hospital or care home

Paragraph 4.45 of the DoLS Code of Practice highlights that ‘if the proposed authorisation relates to deprivation of liberty in a hospital wholly or partly for the purpose of treatment of mental disorder, then the relevant person will not be eligible if:

  • they object to being admitted to hospital, or to some or all of the treatment they will receive there for mental disorder; and
  • they meet the criteria for an application for admission under section 2 or section 3 of the Mental Health Act 1983 (unless an attorney or deputy, acting within their powers, had consented to the things to which the person is objecting).

A judgement by Mr Justice Baker Royal Courts of Justice February 2015 ruled that in all cases where a person lacks capacity, a DoLS assessment has been completed and the relevant person objects to their placement, a referral should be made to the Court of Protection under S.21A, where attempts to resolve any concerns or objection cannot be satisfied.

This would often be done by the Relevant Person’s Representative (RPR) (see Section 9,  Appointing the Relevant Person’s Representative) but if this does not happen the local authority (or, hospital trust (if the person is in hospital where the deprivation of their liberty is occurring), or the ICB (if they are the main funding authority for the care regime amounting to a deprivation of liberty in a care home setting) should take action to make the referral themselves.

Practice lessons

Practice lessons from the judgement include:

  • plan in advance: care should be taken to ensure that a DoLS assessment is completed prior to the move of the relevant person into residential accommodation. There should be very few exceptions to this rule. DoLS assessments should be completed in the case of ‘respite’ care if it is likely that this will become permanent either prior to the placement or with urgency after the placement is started;
  • RPR – conflict of interest: care should be taken that the person appointed as the RPR is willing to make a referral to the Court of Protection if the relevant person objects to their placement. This may be difficult if the RPR is a family member who has a personal interest in the relevant person’s placement. If it is believed that a family member would not be prepared to make a referral to the Court of Protection then a paid representative should be appointed;
  • local authority duty (supervisory body): the local authority has a duty to ensure the person appointed to the role meets the qualifying criteria and is willing to undertake the role. Where the person is either ineligible for the role or unwilling to act in the role the supervisory body will need to identify another eligible person willing to undertake the role. Where this is not possible the supervisory body will appoint a paid representative or bridge the gap through use of an IMCA until such time an RPR can be appointed. Where a family member or friend of the person subject to DoLS is appointed as the RPR, the Supervisory should ensure they know how they can call upon the support of an IMCA if required. challenge to placement: where the relevant person is challenging their placement, action should be taken speedily to resolve and if not possible, refer to the Court of Protection without delay.

Click here to view the judgement: AJ (Deprivation of Liberty Safeguards). 

11. Alerting to Unlawful Deprivation of Liberty

If a person (professional or otherwise) suspects a person is being deprived of their liberty under the acid test (see Section 3, The Acid Test) and it has not been authorised, they should first discuss it with the care home manager / hospital ward manager.

If the care home / hospital agrees the care regime within the care plan(s) amounts to a  deprivation of liberty, they should be encouraged to grant themselves an urgent DoLS authorisation and submit  a request for standard DoLS authorisation with the relevant supervisory body. 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 interest.

If the care home / hospital does not agree to make a request for a DoLS authorisation, the concerned person should approach the local authority, as the supervising body , to discuss the situation and report the unlawful deprivation.

12. Deprivation of Liberty outside of a Hospital or Care Home

This is also known as deprivation of liberty in a domestic setting.

Applications to authorise a deprivation of liberty in the community can be made to the Court of Protection (contact the local authority’s legal department for more details Or ICB’s legal department if the care package is mostly or wholly funded by them). In most cases the authorisation is a paper-based application that should not require a court hearing.

As a practitioner you will also need to ascertain whether the person who has a care package at home or in supported living, may be deprived of their liberty by way of their care plan – that is, do they meet the ‘acid test’ as described above in Section 3, The Acid Test?

  • If after consideration the person meets the ‘acid test’, you will need to review and establish if there are less restrictive means of supporting the person in their best interests that does not amount to a deprivation of their liberty and, if that is not possible seek to make an  application for a Deprivation of Liberty through the  Court of Protection.
  • Let your manager know that you have a person on your case load who may be deprived of their liberty. This is important as all referrals to the Court of Protection need to be sent via the relevant legal team and there is a cost involved.
  • Please follow the relevant guide from the legal department to making a Deprivation of Liberty as soon as possible.
  • It is possible for more than one application to be made to the Court of Protection at a time and the court is currently able to accept numerous applications at the same time.
  • It is important that a person who has a Deprivation of Liberty authorisation in the community also has a Representative (COP Rule 1.2 part 3a); this person is appointed by the Court.

Court of Protection Hub Case Summaries – Court of Protection Hub

13. Consequences of an Unlawful Deprivation of Liberty

If an organisation breaches a person’s human rights (Articles 5 & 8) by unlawfully depriving them of their liberty, it could result in legal action being taken, including a court declaration that the organisation has acted unlawfully and breached the adult’s human rights. This could lead to a claim for compensation, negative press attention and remedial action taken by commissioners and regulators.

14. Patients Receiving Life Sustaining Treatment

See Intensive Care Society and the Faculty of Intensive Care Medicine Guidance on MCA / DoL

The judgement in R (Ferreira) v HM Senior Coroner for Inner South London held that for patients in intensive care they are not necessarily deprived of their liberty as per the acid test in Cheshire West, as the facts in the two cases differed. The effect of this judgement is that even if a patient receiving ‘life sustaining treatment’ (S.4b MCA) appears to be deprived of their liberty, they will not be said to be so if the primary condition they are being treated for is a physical condition even if there is an underlying mental disorder and they are an inpatient in intensive care.

“There is in general no need in the case of physical illness for a person of unsound mind to have the benefit of safeguards against deprivation of liberty where the treatment is given in good faith and is materially the same treatment as would be given to a person of sound mind with the same physical illness.” (Judge Lady Justice Arden)

The Judge also held however that there may be some circumstances where a deprivation of liberty arises and needs to be authorised. In NHS Trust & Ors v FG 2014 for example, a hospital sought authorisation to deprive a pregnant woman of her liberty. The order prevented her from leaving the delivery suite and authorised invasive medical treatment such as a caesarean section.

Any treatment, therefore, for a primary condition which is a physical condition will not constitute a deprivation of liberty where the same treatment would be given to a patient who had capacity. This case is however subject to appeal to the Supreme Court. In such circumstances, staff should always take advice from their safeguarding team /  legal department, as this could be an issue open to interpretation.

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