DoLS and Liberty Protection Safeguards

Sometimes keeping a person safe means arrangements that take away freedoms most adults take for granted — a locked front door they cannot open, constant supervision, not being able to leave and live elsewhere. When the person cannot consent to those arrangements, the state insists on independent checks: that is what the Deprivation of Liberty Safeguards (DoLS) are for. They exist to protect people, not to punish care services for keeping people safe.

This area of law is unusually live right now, and it pays to be careful. Two things are happening at once. First, the long-planned replacement for DoLS — the Liberty Protection Safeguards (LPS) — has still not come into force: government consulted on the reforms during 2026 and implementation is widely expected no earlier than 2027. Second, and more immediately, in June 2026 the Supreme Court handed down a landmark judgment revisiting its own 2014 Cheshire West decision, changing how courts decide whether someone is deprived of their liberty at all.

The practical message for services: DoLS processes continue, but the question of who needs an authorisation is being reassessed nationally in light of the 2026 judgment. Do not withdraw applications or stop renewals on your own interpretation — follow the government guidance issued after the judgment, and your local authority DoLS team's advice.

• Article 5 ECHR (via the Human Rights Act 1998): no deprivation of liberty except by a procedure prescribed by law, with a right to speedy challenge.
• Mental Capacity Act 2005, Schedule A1 (DoLS): the authorisation scheme for hospitals and care homes, for people aged 18+ who lack capacity to consent to their care arrangements.
• Standard authorisations: requested by the managing authority (the home or hospital) from the supervisory body (the local authority), supported by assessments; can last up to 12 months, with conditions.
• Urgent authorisations: self-granted by the managing authority for up to 7 days in genuine urgency, while a standard authorisation is sought.
• Safeguards within the scheme: a Relevant Person's Representative (RPR) for every authorised person, access to IMCAs (sections 39A–39D), reviews, and challenge in the Court of Protection under section 21A.
• Community settings: supported living, shared lives and people's own homes fall outside Schedule A1 — deprivations there need Court of Protection authorisation.
• The 2026 Supreme Court judgment: the Court moved away from the single Cheshire West "acid test" (continuous supervision and control, not free to leave), holding that whether someone is deprived of liberty is a multifactorial question — looking at the type, duration, effects and manner of the arrangements, with real weight given to the person's own wishes and feelings, and recognising that some people can validly consent with a basic level of understanding. Government has published guidance on the judgment's effect; case law will keep developing, so check current guidance rather than relying on pre-2026 summaries.
• Mental Capacity (Amendment) Act 2019: creates the LPS on paper — three assessments, authorisations across all settings, from age 16 — but is not in force. DoLS remain the operational law until commencement.

Under Regulation 13, care must not amount to unlawful deprivation of liberty. CQC expects providers to know who in their service is (or may be) deprived of liberty, to have applications submitted where needed and renewals tracked, to meet any conditions on authorisations, and to notify CQC of DoLS applications and their outcomes.

In the current transition, CQC will not expect providers to have re-invented the law themselves after the 2026 judgment — but it will expect them to show they are following the official guidance, taking local authority advice, keeping records of decisions made in individual cases, and never using the legal uncertainty as a reason to leave restrictions unexamined.

• Keep a live DoLS register: who has an authorisation, expiry dates, conditions and their status, who each RPR is, applications pending.
• Review restrictions honestly and regularly: locked doors, sensor mats, one-to-one supervision, restricted outings. Ask "could we achieve safety with less?" — the least restrictive principle applies regardless of any authorisation.
• Record the person's wishes and feelings about their arrangements in their own words — after the 2026 judgment these carry significant legal weight, and they were always good practice.
• Apply in good time before authorisations expire; an expired authorisation is an unauthorised deprivation.
• Meet conditions visibly: if the authorisation requires more community access, evidence the outings.
• When the picture is unclear post-judgment, write down the question you asked, who you asked (DoLS team, commissioner), and what you did — that record is your protection.
• Support RPRs and families to visit and to raise challenges; obstruction of challenge rights is itself a serious failing.

Example 1. A man with advanced dementia lives on a dementia unit with a keypad-locked door, needs support with all daily tasks, and is settled and affectionate with staff — but when he asks to "go home to Mum", staff redirect him. Before June 2026 this was a textbook acid-test authorisation, and the home holds a standard authorisation with a condition about daily garden access. After the judgment, the manager does not cancel anything: she checks the government guidance, asks the local DoLS team whether the renewal should proceed, records their advice, and keeps evidencing the garden access. The process, not guesswork, protects both the man and the home.

Example 2. A woman recovering from a stroke temporarily cannot leave a care home safely alone and objects loudly every evening. Staff treat her objections as important information, not behaviour to manage: they are recorded, the DoLS office is told the person is objecting (which strengthens the case for review and for section 21A challenge support), and her rehabilitation plan is accelerated so the restriction lasts no longer than genuinely needed.