Deprivation of Liberty Safeguards (DoLS): Rights and Challenges

The Supreme Court's decision in P v Cheshire West and Chester Council [2014] UKSC 19 fundamentally changed how deprivation of liberty is understood in the context of care. The "acid test" set out by Lady Hale is:

Is the person under continuous supervision and control, and are they free to leave?

Crucially, the Supreme Court held that the following factors are not relevant to whether a deprivation of liberty exists:

• The person's compliance or lack of objection
• The relative normality of the placement compared to others with similar conditions
• The reason or purpose behind the placement (even if it is entirely benign)

This means that a person with dementia in a care home who appears content and has never tried to leave may still be being deprived of their liberty in law if they are under continuous supervision and control. The decision massively increased the number of people who require DoLS authorisations — creating the well-documented backlog in Local Authority supervisory body departments.

Before a Supervisory Body (usually the local authority) can grant a standard DoLS authorisation, six assessments must all be completed and passed:

1. Age assessment: The person must be 18 or over.
2. No refusals assessment: No valid advance decision or Lasting Power of Attorney that conflicts with the proposed arrangements.
3. Mental capacity assessment: The person must lack capacity to decide on the proposed accommodation for care or treatment.
4. Mental health assessment: The person must have a mental disorder within the meaning of the Mental Health Act 1983.
5. Eligibility assessment: The person must not be ineligible — for example, because they are already detained under the Mental Health Act 1983, which takes precedence.
6. Best interests assessment: The deprivation of liberty must be in the person's best interests, necessary to prevent harm, and a proportionate response to the likelihood and seriousness of that harm.

If any assessment is not passed, no authorisation can be granted and the person must be released or alternative, less restrictive arrangements must be made. The Best Interests Assessor (BIA) — typically a qualified social worker, nurse, occupational therapist, or psychologist — plays the most significant role and can impose conditions on the authorisation.

Once a standard authorisation is granted, two protective roles come into play:

Relevant Person's Representative (RPR):

• The RPR is a person appointed to maintain contact with the relevant person and to represent and support them in relation to the DoLS authorisation.
• The RPR can be a family member or friend, or (where no suitable person is available) a paid professional RPR.
• The RPR has the right to request a review of the authorisation at any time and to make an application to the Court of Protection under Section 21A.

Independent Mental Capacity Advocate (IMCA):

• Where the relevant person has no suitable RPR, they are entitled to an IMCA — a qualified professional advocate who is independent of the care provider.
• The IMCA's role is to represent the person's interests, gather their views and wishes, and ensure the DoLS process is followed correctly.
• Family members can request an IMCA even where an RPR exists if they believe additional advocacy is needed.

Both the RPR and IMCA have access to the person's records relevant to the DoLS authorisation and can attend relevant meetings.

Section 21A appeals:

The relevant person, their RPR, or anyone else with the court's permission can apply to the Court of Protection under Section 21A of the Mental Capacity Act 2005 to challenge:

• Whether the person meets the qualifying requirements for a DoLS authorisation
• Whether the purpose of the standard authorisation is to prevent harm to the person
• Whether the deprivation of liberty is in the person's best interests and is a proportionate response
• Any condition attached to the authorisation

The Court of Protection can discharge the authorisation, vary its conditions, or uphold it. Legal aid is available for Section 21A proceedings — apply through the Legal Aid Agency.

Liberty Protection Safeguards (LPS) — planned replacement:

The Mental Capacity (Amendment) Act 2019 created the Liberty Protection Safeguards (LPS) to replace DoLS. LPS were intended to extend protections to domestic settings and other settings not covered by DoLS, and to streamline the authorisation process. However, as of April 2025, LPS have not been implemented and the DoLS framework remains in force. The government has indicated a phased implementation is being considered — always check the current position before advising on this area.