Deprivation of Liberty Safeguards (DoLS)

The Deprivation of Liberty Safeguards (DoLS) came into force in April 2009 and form part of the Mental Capacity Act 2005.

The Mental Capacity Act is a wide-reaching piece of legislation that champions adult autonomy and governs the care and support of people who lack capacity to make decisions in areas of their lives. The Act is divided into sections that set out the principles, duties and processes that guide decision making and support for individuals who lack capacity.

When a person is unable to make a decision because of an impairment of, or disturbance in, the functioning of their mind or brain, the Act provides a legal framework for decisions to be made on their behalf. This includes the role of a Lasting Power of Attorney. It also allows decision makers to make decisions for that unique individual using the Best Interests checklist set out in Section 4 of the Act.

The Act acknowledges that there may be times when a person requires care to keep them safe and healthy and, because of their level of need, their care plan contains restrictions. In some circumstances, these arrangements may amount to a deprivation of their liberty, which is protected by Article 5 of the Human Rights Act. If this occurs, a higher level of authorisation is required, and safeguards are needed to protect individuals who may be deprived of their liberty under the Mental Capacity Act 2005.

If the person is in a registered care home or hospital, the situation can be considered through the Deprivation of Liberty Safeguards authorisation process. If the person lives in their own home or in a community setting, such as supported living, the matter must be dealt with through an application to the Court of Protection.

Registered care homes and hospitals are known as Managing Authorities under DoLS. They are responsible for preventing unnecessary deprivations of liberty and for recognising when a deprivation of liberty is occurring or is likely to occur. They can grant an ‘urgent authorisation’ where necessary and must make a referral to the Supervisory Body to consider whether a ‘standard authorisation’ should be granted.

Community settings must also recognise when a deprivation of liberty may be taking place. If you are a provider and believe a person’s care arrangements amount to a deprivation of liberty in the community, the DoLS process cannot be used. Instead, you should work with the commissioner to consider initiating an application to the Court of Protection for a community deprivation of liberty.

Identification of a deprivation of liberty

We all have human rights. One of those rights is Article 5 – the right to liberty.

Sometimes a person's liberty may need to be restricted to keep them safe. When that happens, we must ensure there is a legal process in place to protect the person's rights.

There have been two important Supreme Court judgments which have shaped how we identify a deprivation of liberty.

The 2014 Supreme Court judgement

In March 2014, The Supreme Court introduced the Acid Test to help identify when a deprivation of liberty was taking place.

This Acid Test stated that a person is deprived of their liberty if:

  • They are under continuous supervision and control
  • They are not free to leave
  • They lack capacity to consent to those arrangements

The Court decided that the following factors were not relevant when determining whether a deprivation of liberty exists:

  • The person’s compliance or happiness or lack of objection
  • The suitability or relative normality of the placement when compared with someone of a similar age and condition
  • The reason or purpose behind a placement

The 2026 Supreme Court judgement

On 2 June 2026, the Supreme Court issued a further judgment which means that the Acid Test should no longer be relied upon on its own when deciding whether a person is deprived of their liberty. Instead, we must take a multifactorial approach.

The Mental Capacity Act itself has not changed. What has changed is how we define a deprivation of liberty.

The Supreme Court considered both:

  1. The objective element (whether the person is confined); and
  2. The subjective element (whether the person has validly consented to the arrangements)

Rather than applying a single test, we now look at the person's concrete situation - the care plan and the restrictions themselves. We also consider how the person experiences the totality of the restrictions. The range of factors we consider includes:

  • The type of restrictions in place
  • How often and for how long they occur
  • The way they are applied
  • Whether the arrangements resemble normal life in that setting
  • Or whether they instead amount to restrictive confinement
  • How does the person experience the restrictions, as an intrusion into their life or do we see evidence of content through behaviours, wishes, feelings

One of the key changes from the June 2026 Judgement is that a person may lack capacity to make decisions about their care and accommodation under the Mental Capacity Act 2005 but still be able to express acceptance of their living arrangements for the purposes of Article 5. Evidence of such acceptance is a significant factor when considering whether a deprivation of liberty exists.

No single factor will determine the outcome. We need to look at the whole picture.

When a person may fall outside the definition

A person may fall outside the definition of a deprivation of liberty where:

  1. The arrangements involve no coercion and support the person to live as normal a life as possible in the circumstances. For example, a person who is very unwell or has significant cognitive impairment may be unable to leave, but is otherwise experiencing ordinary care in that setting.
  2. The person's wishes, feelings or positive responses indicate they are content with the arrangements. This does not mean they have capacity to decide on their care, treatment and accommodation.

Where there is uncertainty about how the person feels, professionals should err on the side of caution. Mere compliance should not automatically be interpreted as contentment.

What should be considered?

When deciding whether a deprivation of liberty exists, it is important to consider:

  • Any restrictions in place for the individual
  • The individual's experience of their care arrangements and their response to them
  • The purpose of the arrangements
  • The justification for the arrangements
  • The overall impact of those arrangements on the person's liberty

What if there is no authorisation?

Without an authorisation, does the provider have to let the person go?

The answer is no.

Best Interests still applies and providers must continue to take appropriate action to keep people safe and prevent harm.

However, circumstances can change. If a person begins trying to leave and staff have to stop them, the restrictions may become more coercive. Equally, the person's actions may indicate they are no longer content with the arrangements.

In those circumstances, the situation may fall within the definition of a deprivation of liberty and the provider should make the appropriate referral.

Department of Health and Social Care publications

There have been two significant Supreme Court judgments relating to the definition of a deprivation of liberty, in March 2014 and June 2026.

The current Deprivation of Liberty Safeguards Code of Practice was published before both of these judgments. As a result, parts of the Code do not reflect the current legal position and should be read alongside the principles established by the Supreme Court.

Deprivation of Liberty Code of Practice – GOV.UK

Hampshire supervisory body

Hampshire County Council is the Supervisory Body for people who are or may be deprived of their liberty in a hospital or care home, who lack capacity to consent to arrangements and who are 'ordinarily resident' in Hampshire.

All DoLS referrals and enquiries should be made to:

The DoLS Administration Team
Email: [email protected]

DoLS forms

DoLS forms can be accessed on the Government website.

Following the Supreme Court judgment of 2 June 2026, the forms are currently being reviewed by the Association of Directors of Adult Social Services (ADASS) and the Department of Health and Social Care to ensure they reflect the current legal position.

Deprivation of liberty safeguards: resources - GOV.UK

Useful resources

Further guidance and support

If you are unable to find the relevant support, get in touch with Adult's Health and Care:

Getting help and support