People have a right to liberty under the Human Rights Act (1998). Sometimes, people’s liberty and freedom may need to be limited to keep them safe, and these restrictions may mean the person is deprived of their liberty.

If someone you care for does not have the capacity to make decisions about their care or treatment, the people arranging and providing their care must think about any restrictions placed on the person being cared for. They should consider if the restrictions are necessary, proportionate and whether there is a less restrictive option available.

A person is deprived of their liberty if they are under continuous supervision and control and they are not free to leave.

This applies wherever they live. To make these restrictions lawful, the right type of authorisation must be in place. The Law Society has a practical guide to Deprivation of Liberty Safeguards (DoLS).

Deprivation of Liberty Safeguards (DoLS) authorisation for care homes and hospitals

DoLS is a legal safeguard for people aged 18 or over who cannot make decisions about their care or treatment. It is part of the Mental Capacity Act (2005). It makes sure that any limits on a person’s freedom:

• are in their best interests
• are the least restrictive option
• have been checked by an independent assessor

A 2014 Supreme Court judgement confirmed that everyone has the same human rights, whether or not they have a disability.

The care home or hospital must request a DoLS authorisation from us if they restrict or plan to restrict a person's freedom.

Deprivation of liberty in community settings

A person may also be deprived of their liberty in the community. This includes:

• their own home
• supported living settings
• Shared Lives settings
• other similar settings

Deprivation of liberty in these settings must be authorised by the Court of Protection.  If the person’s care is funded only by health services, the health commissioner should be contacted first.

If a person under your care lacks capacity, you should contact us to check if their care arrangements may mean that they are under continuous supervision and control, and they are not free to leave the place where they are. We can then advise if you need to seek authorisation.

If the person already has an allocated worker, you can discuss your concerns with them.

Deprivation of liberty for people aged under 18

The DoLS authorisation does not apply to people aged under 18. However, local authorities must consider whether any child in need or any looked‑after child is experiencing restrictions that amount to a deprivation of liberty. 

If the deprivation is not already authorised by law, the right authorisation must be obtained from either the Court of Protection or a High Court exercising its inherent jurisdiction.

Children and young people aged under 16

The Mental Capacity Act 2005 does not apply to people aged under 16. In some cases a parent with Parental Responsibility may be able to give consent for restrictions. If not, an application must be made to the High Court to exercise its inherent jurisdiction. 

Young people aged 16 and 17

The Mental Capacity Act 2005 or the Children Act may apply if the young person lacks capacity and is likely to continue to lack capacity when they turn 18. An application will usually be made to the Court of Protection, but in some situations an application under the Children Act may be more appropriate. 

If the young person has capacity but objects to the restrictions, an application must be made under the Children Act.

Cases can be transferred between courts if needed.

If any of the above applies to a young person under 18 years old, you should contact our children's services first response team at childrensfirstresponse@bcpcouncil.gov.uk.