Deprivation of Liberty – A New Era

In a landmark ruling by the Supreme Court, the existing law surrounding Deprivation of Liberty (Dols) has been overturned despite rigorous arguments from the charities Mind, Mencap and the National Autistic Society.

Following this judgement, the rules to determine if someone is deprived of their liberty for the purposes of Article 5 have changed considerably.

A Deprivation of Liberty under Article 5 Human Rights Act can occur where a person is under constant supervision and is unable to leave their residence unattended, such as a resident in a care home or someone receiving care in their own home.  There have always been safeguards in place to prevent someone being deprived of their liberty, with assessments being undertaken.

The Old Rules

• Is the person under continuous supervision?
• Is the person free to leave?

If the answer to both these questions was no, the person would have been classed as being deprived of their liberty AND subject to a deprivation of liberty safeguard and all the protection that came with that.

The New Rules

Set out a multifactorial approach based on the person’s concrete situation taking into account all relevant circumstances of the person’s confinement and including if they seem happy or unhappy. No one factor determines the result and so all factors must be considered.

The judgement sets out a list of objective and subjective elements of the test for deprivation of liberty.

What happens now?

Whilst the next steps are not completely clear at the moment due to the Judgement only being decided on 2^nd June 2026, it is likely that the local authority may need to carry out urgent care needs reviews for those in a care home, or receiving care at home, to assess whether the person can consent to their arrangements.

In practical terms, if your loved one has been subject to a Dols, that may no longer be relevant. It is likely that the Local Authority will take some time to deal with all these cases where the Dols may no longer apply and to get all cases reviewed. It is worth remembering that the Local Authority has a duty to assess the persons care needs annually or whenever there is a change to their needs. If a care review is imminent, it is worth raising the question of them also reviewing your loved ones Dols

The new legislation appears to withdraw the requirement for an independent advocate to voice any concerns raised by the person, and withdraws non-means tested legal aid.

If your loved one has a home to sell

This could have implications for those requiring Court of Protection authorisation to sell a property, where the owner (co-owner) is in a care home. You should get legal advice to support this application to get the best outcome possible.

Some headlines from the Judgement

• A person can consent to their deprivation of liberty, if they have capacity.
• If a person lacks capacity, they can still be regarded as giving consent by expression of their wishes, feelings and showing a contentment and lack of objection to their arrangement.
• A person in a minimally conscious state is not regarded as being deprived of their liberty.
• If a person has severe dementia they cannot be deprived of their liberty.
• If a person is so profoundly disabled that they cannot conceptualise leaving, let alone physically achieve this, they are not being deprived of their liberty.

This case represents a seismic change in the way Local Authorities and the Court of Protection decide whether a deprivation of liberty exists and the implications for vulnerable people will be far reaching.  The judgement is new and so there will undoubtedly be more news to share as time goes on.

If you are concerned about the deprivation of liberty of a loved one or would like further guidance, please contact the Vulnerable Client Team at Furley Page LLP on 01227 763939.