Recognising Deprivation of Liberty

Care is full of small limits placed on people for their safety: a door code, a seatbelt on the minibus, a sensor mat, someone accompanying a person to the shops. Most are lawful, sensible restrictions. But limits can accumulate until a person's life is, in substance, controlled — where they live, who they see, when they go out, whether they can leave. At that point the law calls it a deprivation of liberty, and it must be independently authorised, because protecting people includes protecting them from over-protection.

For a decade, staff were taught the "acid test" from the 2014 Cheshire West case: continuous supervision and control plus not free to leave. In June 2026 the Supreme Court revisited that approach and replaced it with something more nuanced — a multifactorial assessment, in which the person's own wishes and feelings carry real weight, and where a person with even a basic understanding who genuinely accepts their arrangements may be giving valid consent. Fewer settled, contented people are likely to need authorisations than before; people who object need attention more than ever.

What has not changed: none of this makes restriction casual. Every limit still needs a reason, a record, and a regular "could we do this more freely?" review — and where a deprivation does exist, it still needs authorisation.

• Article 5 ECHR / Human Rights Act 1998: the right to liberty; deprivation only via a legal procedure with rights of challenge.
• MCA 2005 section 6: restraint on a person lacking capacity is only permitted where necessary to prevent harm and proportionate to the likelihood and seriousness of that harm.
• The June 2026 Supreme Court judgment: whether arrangements objectively amount to a confinement is assessed across multiple factors — the type, duration, effects and manner of implementation of the measures — rather than the single acid test; subjectively, a person conscious of their situation, with basic understanding, expressing acceptance may validly consent. Official guidance on applying the judgment is on GOV.UK — last updated on 22 September 2026, with further interim guidance and practical case studies promised by December 2026 — and will develop through further cases.
• Authorisation routes: DoLS for care homes and hospitals; the Court of Protection for community settings — see the DoLS and LPS topic.
• Regulation 13(4)–(5): care must not include unlawful restraint or deprivation of liberty.

Assessors look at restrictions in the flesh: they try door handles, notice call-bell responses to people asking to go out, read "behaviour" notes for redirection language, and ask staff who decided a person cannot leave alone and when it was last reviewed. They expect individual risk assessments behind every restriction, evidence of least-restrictive alternatives tried, the person's own view recorded, and authorisations in place where the picture amounts to deprivation.

Blanket restrictions attract particular criticism: one person's risk is never a lawful reason to lock every resident's world. Post-2026, expect assessors to ask how the service has responded to the new judgment — the good answer involves guidance read, advice sought and individual reviews, not "we stopped doing DoLS". The official guidance asks for existing authorisations to be reviewed as soon as is practicable and for the approach to be documented; an authorisation left in place while that happens is not, by itself, unlawful.

• Audit restrictions per person, not per building: doors, technology (sensors, trackers, CCTV), medication with sedating effect, one-to-one supervision, finances, contact with others, access to the community.
• For each restriction record: the specific risk, why lesser options don't work, the person's wishes and feelings about it, review date.
• Listen for objection in all its forms — words, packing bags, waiting by doors, distress at handover times. Record it faithfully; it matters legally and morally.
• Equally, record genuine contentment and understanding — post-2026 this is central to whether arrangements even amount to deprivation.
• Never use restraint as a first response; where it is ever foreseeable, plan it (technique, duration, debrief) and train for it.
• Escalate doubtful cases: local authority DoLS team, commissioner, or your manager. Write down the advice you get.

Example 2. A supported living tenant with a learning disability has staff with him whenever he leaves the flat, after a road-safety incident. He says he likes staff coming along, understands why in simple terms, and shows no sign of wanting to go alone. Post-judgment review: his acceptance and understanding are documented, alongside travel training to reduce the restriction over time. The provider asks the commissioning team whether court authorisation is still needed and records the answer.

Example 1. A woman in residential care repeatedly says she wants to leave and live with her sister, and is stopped at the door each time. Whatever else is true, she is objecting to confinement — staff record her words, the manager checks the DoLS position urgently, her representative and family are involved, and the possibility of living with her sister is properly explored rather than dismissed. Objection is treated as a right being exercised, not a symptom.