6.2 Deprivation of Liberty Safeguards

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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

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 [their] detention shall be decided speedily by a court and his [their] release ordered if the detention is not lawful’.

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 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. See Section 11, Deprivation of Liberty outside a Hospital or Registered Care Home Setting.

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 (e.g. 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 that all care providers can recognise when a person might be deprived of their liberty and then take the required action by applying for an authorisation to the supervisory body / Court of Protection. This extends to all hospitals and registered care homes, domiciliary care providers, and day services.

Associated health and social care professionals must also be able to identify a potential deprivation of liberty, and 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.

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

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. Promoting Less Restrictive Practice: Reducing Restrictions Tool for Practitioners (LGA and ADASS) 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. The Deprivation of Liberty Safeguards Process

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 registered 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’ in that local authority area. The supervisory body organises and oversees the entire process for authorising a deprivation of liberty  that occurs in a registered care home or hospital. (See Ordinary Residence chapter for more guidance on deciding ordinary residence where this is unclear).

Annex 1 in the DoLS Code of Practice provides an overview of the legal process that begins when the application for a standard authorisation is received.

As a first step, the managing authority (the hospital or registered care home) must fill out a Form 1 (see Deprivation of Liberty Safeguards: Resources (DHSC) requesting a standard authorisation. This should be sent to the supervisory body (the Salford NCA DoLS Team), who will then commission assessments to decide whether the person meets the necessary requirements for a standard authorisation to be granted or not granted.

See also Standard Authorisation Monitoring Form (Salford Care Organisation)

5.2 Managing authority (MA) granting an urgent authorisation

The managing authority must decide whether an urgent authorisation should be issued in addition to their application for a standard authorisation (this is their responsibility) or whether just a standard authorisation is needed.

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 by the supervisory body but only if certain criteria are met (see Deprivation of Liberty Safeguards: Resources (DHSC).

When issuing an urgent authorisation, the managing authority must reasonably believe a standard authorisation would be granted.

Before granting an urgent authorisation, the managing authority should try to speak to the family, any person who has Lasting Power of Attorney for Health and Welfare (LPA), 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 for the LPA for Health and Welfare, friends / family / carers / advocates / allocated worker and other professionals on the Form 1 when they make the referral or grant themselves an urgent authorisation. the LPA objects to the DOLS application, the managing authority must seek legal advice and inform the DOLS team via [email protected]

5.3 ADASS DoLS Priority Tool

The ADASS screening tool has been developed for use by local authorities when prioritising DoLS requests. The screening tool sets out three areas – high, medium and low – with criteria under each heading to assist with prioritising each referral received. It also includes suggestions on how to manage renewals and those people who have no family or friends to represent them.

For more information see ADASS DoLS Priority Tool – a Screening tool to prioritise the allocation of new requests to authorise a deprivation of liberty.

6. The Assessment Process

Before the supervisory body can grant an authorisation for a deprivation of liberty they will arrange for the following assessments to be completed:

• mental health assessment: to confirm whether the person is suffering from a mental disorder;
• 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 interests assessment: confirms whether deprivation of liberty is occurring, whether it could be avoided, and whether it is in the person’s best interests. The assessment 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 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 if there is a valid and registered Lasting Power of Attorney or Deputy with authority over welfare decisions. Checks to see if an LPA has been registered with the Office of the Public Guardian / OPG can be made using the OPG 100 Form, Check if someone has a registered attorney or deputy.

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 Mental Capacity Advocate Service chapter).

7. Granting or Not Granting a Standard Authorisation

If any of the requirements in Section 6, The Assessment Process are not met, deprivation of liberty authorisation cannot be lawfully granted. This may mean the registered care home or hospital must change its care plan to remove the restrictions and restraints causing the deprivation of liberty.

If all requirements are fulfilled, the supervisory body must grant the deprivation of liberty authorisation, for up to a maximum of one year. The supervisory body must inform the adult, those consulted, 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.

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 request another standard authorisation.

8. Conditions and Recommendations

The best interests assessor (BIA) can recommend certain conditions are applied to the standard authorisation. The supervisory body can choose whether to attach the BIA’s recommended conditions to the standard authorisation. The supervisory body can also attach its own conditions to the authorisation. The managing authority must implement the conditions.

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

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

9. Appointing a Relevant Person’s Representative

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

If there is no LPA, family member, friend, or informal carer suitable to be the person’s representative, the DoLS office must appoint a paid professional representative. Their name should be recorded in the person’s health and social care records. Contact Mind in Salford if a Relevant Person’s Representative needs to be appointed.

The family / friend RPR has the right to request the advice and support of a qualified IMCA (see Independent Mental Capacity Advocate Service chapter).

If a person is deprived of their liberty in a setting other than a care home / hospital and the Court of Protection issues a Community DoL order authorising their deprivation of liberty, the person must be given a Rule 1.2 Representative. 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 1.2)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 RPR or Rule 1.2 Representative to ensure that any conditions attached to a DoLS authorisation or Community DoL Order are complied with and report this back to the supervisory body or 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 registered 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 care 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 for a Part 8 DoLS Review are met. DoLS reviews do not replace other 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 person ‘objects’ to being deprived of their liberty in a hospital or registered care home

A Court of Protection judgment (February 2015) ruled that in all cases where a person lacks capacity, a DoLS assessment has been completed and the person objects to their placement, a referral must be made to the Court of Protection under S.21A MCA.

This referral would often be made 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 should take action to make the referral themselves.

Practice lessons from the judgment 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 placement of the relevant person. In this case a paid professional representative should be appointed;
• local authority duty (supervisory body): the local authority has a duty to check that the RPR meets all the criteria and, if not, to take action to rectify this. They should make resources available to provide IMCAs. In Salford, the IMCA will complete a review of conditions (RoC) form to confirm if the RPR visits have taken place. Completed RoC forms are sent to the DoLS team every three months)
• challenge to placement: where the relevant person and or LPA for health and welfare is challenging their placement, action should be taken speedily to refer to the Court of Protection.

For more information please see: AJ (Deprivation of Liberty Safeguards). 

11. Deprivation of Liberty outside a Hospital or Registered Care Home Setting

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

Applications to authorise a deprivation of liberty in the community are made to the Court of Protection (contact the local authority’s legal department for more details). 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.

• If so, you will need to make the application for a deprivation of liberty which can only be authorised by the Court of Protection.
• Let your manager know that you are working with a person 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.
• Follow the relevant guide from your legal department to make a deprivation of liberty application 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.

See also: ADASS Community Deprivation of Liberty priority tool – the tool sets out criteria to use to identify where the most urgent action is needed when someone aged 16+ needs to be cared for in a way that amounts to a deprivation of liberty but outside of a hospital or registered care home.

12. 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 registered care home manager / hospital ward manager, domiciliary care 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 options available to keep the person safe, and that 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 the Court of Protection, to discuss the situation and report the potential unlawful deprivation.

13. Consequences of an Unlawful Deprivation of Liberty

If an organisation breaches a person’s human rights (Articles 5 and 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 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 (June 2026) considered the position of those who are catatonic (e.g. due to severe dementia or following a stroke or traumatic head injury). Their concrete or specific situation is that, due to their physical condition, they do not have any bodily, physical liberty to exercise. Since there is no possibility of anyone contradicting their will in that regard, it cannot sensibly be said that anyone is subjecting them to treatment that constitutes a deprivation of their physical or bodily liberty. There is no objective and no subjective element of deprivation of liberty.

Where an individual is temporarily unconscious because of their physical condition (e.g. due to injury, disease or medication), it is relevant to take into account their potential to regain consciousness. In such cases an objective element of deprivation of liberty is present, in that when they regain consciousness they will be prevented from leaving. The subjective element is also present where they clearly do not, or would not (when they regain consciousness), consent to their arrangements.

In ordinary circumstances, an individual in hospital to receive treatment (and who, for their own protection, would be prevented from leaving while, say, confused and unable to think because of medication) would not be regarded as deprived of liberty. Ordinary expectations and the ordinary conduct of life play a significant role in the assessment whether there is a deprivation of liberty, the court judged.

15. Further Reading

15.1 Relevant chapters

Mental Capacity

Independent Advocacy

Independent Mental Capacity Advocate Service

Assessment

15.2 Relevant information

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

Identifying a deprivation of liberty: a practical guide (The Law Society)

Promoting less restrictive practice: reducing restrictions tool for practitioners (Local Government Association)