Restricting Freedom (Deprivation of Liberty Safeguards)

In this section

Restricting Freedom (Deprivation of Liberty Safeguards)

On 2 June 2026, the Supreme Court issued a judgment which changes the legal framework for deprivation of liberty in adult social care. We are reviewing the judgment and awaiting new guidance.

The Deprivation of Liberty Safeguards are part of the Mental Capacity Act 2005. They aim to make sure adults in care homes, hospitals or supported living are looked after in a way that does not inappropriately restrict their freedom.

The Deprivation of Liberty Safeguards should ensure that a care home, hospital or supported living arrangement only deprives someone of their liberty in a safe and correct way, and is only done when it is in the best interests of the person and there is no other way to look after them.

These safeguards protect the interests of extremely vulnerable people, and to:

ensure they can be given the care they need
prevent decisions that deprive vulnerable people of their rights
provide safeguards for vulnerable people
provide them with rights of challenge against unlawful detention
avoid unnecessary bureaucracy

The safeguards apply to anyone:

aged 18 and over
who are in hospitals, care homes or supported living
who suffers from a mental disorder or impairment of the mind
who do not have the mental capacity to make decisions about their care or treatment
for whom deprivation of liberty is considered, after an independent assessment, to be necessary in their best interests to protect them from harm.

A deprivation of liberty safeguard cannot be used if a person has the mental capacity to make decisions, so the person's capacity will be assessed as part of the process. The safeguards do not apply when someone is detained ('sectioned') under the Mental Health Act 1983.

If you feel a person is being deprived of their liberties, you may discuss the issues directly with the hospital or care home. You may request by phone or in writing, that we review the person, to check if they are being deprived of their liberty.

The safeguards cover patients in hospitals, and people in care homes registered under The Health and Social Care Act 2008 (Regulated Activities) Regulations 2015, whether placed by the council or self-funded.

If a person is receiving care in supported living arranged by us, the Court of Protection must authorise the deprivation of liberty. An application to the Court of Protection will be made by the individual’s social worker, with support from the Deprivation of Liberty team.

If a person is receiving care in care home arranged by us, the home or hospital will consider whether the care plan or treatment required is restrictive. In this instance, they should request an assessment to authorise the deprivation of liberty that is deemed to be necessary in order to protect the person and ensure their safety. The Deprivation of Liberty Team at the council can also be contacted to discuss concerns, offer guidance and carry out an assessment.

If a person is receiving care at home arranged by us, the agency will consider whether the care plan or treatment required is restrictive. In this instance, the Court of Protection must authorise the deprivation of liberty. An application to the Court of Protection will be made by the individual’s social worker, with support from the Deprivation of Liberty team at the council.

If you would like to make a Deprivation of Liberty Safeguards application, or to speak with us about Deprivation of Liberty safeguards, please contact Adult Early Help on 01733 452497 or email dols@peterborough.gov.uk.

On the 2nd June 2026, the Supreme Court unanimously overruled the Cheshire West judgement, which was a landmark judgement made in 2014 (P v Cheshire West and Chester Council). It was this judgement that created the ‘Acid Test’ that consisted of two key questions, namely:

1. Is the person free to leave?

2. Is the person under continuous supervision and control?

There were other key factors that had to be considered in addition to the acid test. What we do know is that, because of this ruling by the Supreme Court, there may be people in care homes and hospitals who now, may no longer meet the criteria under Deprivation of Liberty safeguards (DoLS).

For the past 12 years this case precedence formed a major part in Best Interests Assessors (BIA) making Best Interests decisions regarding depriving a person of their liberty under the Deprivation of Liberty Safeguards (DoLS). This was done to accommodate a person in a care home or hospital for their support and treatment arrangements where that person was deemed to lack mental capacity to make valid decisions on where they should reside for their care and treatment. The Supreme Court’s departure from Cheshire West now means that the acid test is now invalid and cannot be used to determine a person’s deprivation of liberty.

Like many other local authorities, Peterborough City Council are working with neighbouring Councils to get an understanding of what this will mean for people who are currently under DoLS, waiting for assessments under DoLS and for those who have applied to the Court of Protection (CoP) where DoLS had been granted by the CoP. This also includes waiting for guidance for young people who are aged between 16 to 18 years old who are subject care and support.

There are currently many questions that cannot be answered until the Code of Practice within the Mental Capacity Act 2005 is revised and or there is guidance issued by other parties such as the Secretary of State or Association of Directors of Adult Social Services (ADASS).

Until there is definitive guidance on the way forward, care within care homes and hospitals will continue to be managed by those responsible Managing Authorities. Peterborough City Council will continue to be responsible for ensuring that the support arrangements are proportionate and, in a person’s, best interests.

Staying safe and avoiding harm

In this section