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Mental Capacity Act 2005

Explains how the Mental Capacity Act affects you and how you can plan ahead for when you no longer have the mental capacity to make decisions for yourself. Applies to England and Wales.

  • This information applies to England and Wales.
  • This information applies to adults. It doesn't apply to children unless specifically stated.

What's a deprivation of liberty?

Your liberty can only be taken away from you in very specific situations. The Mental Capacity Act calls this a deprivation of liberty.

Being deprived of liberty means that you’re not free to go anywhere without permission or close supervision. It also means that you’re continuously supervised. This is against the law unless it's done under the rules of the Mental Capacity Act.

A deprivation of liberty should only be used if it’s the least restrictive way of keeping you safe. Or making sure that you have the right medical treatment.

When might I be deprived of my liberty?

Deprivation of liberty may happen if you need to go into a care home or hospital to get care or treatment, but you don't have the capacity to make decisions about this yourself. 

How deprivation of liberty happens will depend on your circumstances:

  • If you’re in a care home or hospital, you can be deprived of your liberty lawfully using procedures called the Deprivation of Liberty Safeguards (DoLS). Or if the Court of Protection has granted permission.
  • If you’re living at home, in supported accommodated or in a shared lives placement, you can be deprived of your liberty lawfully if the Court of Protection has granted permission.
  • If you need immediate, life-saving treatment in hospital and would die without it, and the restrictions involved in your care and treatment would be the same whether you had capacity or not, this won't count as a deprivation of liberty.

Deprivations of liberty are monitored by the Care Quality Commission (England) and the Healthcare Inspectorate Wales (Wales). They write regular reports on the use of deprivations of liberty. But they wouldn't be able to investigate individual cases on your behalf.

What are the deprivation of liberty safeguards (DoLS)?

DoLS include these key elements which healthcare professionals must consider:

  • Whether it’s in your best interests to take away your liberty. This means it’s necessary to prevent harm to you. And that the detention is justified, looking at how likely you are to suffer harm and how serious the harm might be.
  • Whether it’s become necessary and unavoidable to take away your liberty. Every effort should be made to prevent it from becoming necessary.
  • Whether you're at a care home or hospital, or somewhere else. DoLS cannot be used to take you from your home to a care home or hospital. This would need an order from the Court of Protection.

Your care and treatment should always be provided in the least restrictive way possible. DoLS will only need to be used if your care or treatment will deprive you of your liberty.

For example, you may need to be kept away from places or situations where your safety could be at risk, such as railway lines or busy roads. So DoLS may be used to prevent you from leaving your care home.

DoLS may not be required if you’ll only be in the hospital or care home for a very short period of time, such as a few hours. 

What are the conditions for using a deprivation of liberty?

The conditions for depriving your liberty are different depending on whether it happens under DoLS, or via the Court of Protection.

Deprivation of liberty safeguards (DoLS) conditions

DoLS should only be used to lawfully deprive you of your liberty if:

  • You’re age 18 or over
  • You lack capacity to agree to the restrictions
  • You’re staying in a care home or hospital, and they've successfully applied for an authorisation from the local authority
  • The deprivation of liberty safeguards have been followed

Court of Protection conditions 

The Court of Protection should be used to lawfully deprive you of your liberty if:

  • You’re age 16 or over
  • You lack capacity to agree to the restrictions
  • You live at home, in supported accommodation or in a shared lives placement
  • You’re in a care home or hospital but there’s a dispute over your placement there

Example

Jon lives in a care home. He has memory problems that have become worse over time. His condition means that he's less aware of danger than others. He’s unable to cross a busy road on his own and doesn’t understand that it’s dangerous to cross a nearby railway line. 

Jon needs constant supervision. He has to be stopped from going out on his own. This usually involves keeping him in a locked room and physically stopping him if he tries to go out on his own. To keep him safe, this has to be done on a regular basis.

It would be unlawful for the staff to do this without using the deprivation of liberty safeguards. They should apply to the local authority for permission as soon as they realise it's necessary. This permission is called a standard authorisation.

Is a deprivation of liberty the same as being detained under the Mental Health Act?

No. Deprivation of liberty isn’t the same as being detained under the Mental Health Act 1983. You don’t need to have treatment for a mental health problem to be deprived of your liberty.

You can be deprived of your liberty to keep you safe. Or it could be to treat other health problems. 

If you need to be detained for mental health treatment, this will normally be done under the Mental Health Act 1983. If you’re already detained under the Mental Health Act, health professionals cannot also use a deprivation of liberty procedure.

How does the authorisation process work?

Before you can be lawfully deprived of your liberty, the care home or hospital where you’re staying must apply for authorisation. This means getting permission from the relevant authority. This would usually be from the local authority. If you’re in hospital in Wales, this can also be a local Health Board.

Before the deprivation of liberty is authorised, you’ll have 6 assessments. These may take place at the same time. 

The 6 assessments 

You cannot have your liberty taken away unless all the 6 assessments are met. These are:

  1. An age assessment, to make sure that you’re aged 18 or over.
  2. A mental health assessment to confirm that you’ve been diagnosed with a 'mental disorder' within the meaning of the Mental Health Act. 
  3. A mental capacity assessment to see whether you have capacity to decide where your accommodation should be. If you have, you shouldn’t be deprived of your liberty. The authorisation procedure shouldn’t go ahead.
  4. A best interests assessment to see whether you’re being, or are going to be, deprived of your liberty. And to assess whether this is in your best interests. This should consider your values and any views you've expressed in the past. It will also consider the views of your friends, family, informal carers and any professionals involved in your care.
  5. An eligibility assessment to confirm that you’re not detained under the Mental Health Act 1983. And that you're not subject to a requirement that would conflict with the Deprivation of Liberty Safeguards. This includes being required to live somewhere else under Mental Health Act guardianship.
  6. A 'no refusals' assessment to make sure that the deprivation of liberty doesn't conflict with any advance decision you've made. Or conflict with the decision of an attorney under a lasting power of attorney, or a deputy appointed by the Court of Protection.

Flowchart: How does the authorisation process work?

Is a deprivation of liberty authorisation always granted?

Your deprivation of liberty authorisation won't be granted unless all the conditions in the 6 assessments are met.

The authorisation must also:

  • Be in writing
  • Include the purpose of depriving you of liberty
  • State why the supervisory body considers that you meet the legal conditions for using a deprivation of liberty
  • Contain any conditions attached to the authorisation, such as steps to maintain contact with your family or meet your cultural needs

Your care home or hospital must do what it can to make sure that you and your relevant person’s representative understand:

  • The effect of the authorisation
  • Your right to request a review
  • Your right to apply to the Court of Protection

If your deprivation of liberty authorisation isn't granted, the supervisory body must inform:

  • You
  • The hospital or care home that made the request
  • Any independent mental capacity advocate involved
  • Every interested person consulted by the best interests assessor. For example, friends, family and informal carers

Can I challenge the authorisation in court?

If you think you shouldn’t be deprived of your liberty, you can challenge it by:

  • Asking for a review of the authorisation
  • Appealing to the Court of Protection

Reviewing the authorisation

The supervisory body must review the deprivation of liberty authorisation if you ask them to do so. Your hospital, care home or your relevant person’s representative can also ask them to review the authorisation.

You may have to go through the 6 assessments again if your circumstances have changed.

The outcome of the review may be that:

  • They end the deprivation of liberty authorisation
  • They change the conditions attached to the authorisation 
  • You still meet the conditions for deprivation of liberty, possibly for a different reason

The supervisory body may also carry out a review at other times. You can ask the local authority to help you with this.

Appealing to the Court of Protection

You have a right to appeal to the Court of Protection against a decision by the supervisory body. Your deputy, attorney or relevant person’s representative also have this right. Any other person can appeal to the court, but they'll need the court’s permission first.

Legal aid is available for you or your relevant person's representative to have legal representation at the appeal.

The Court may tell your hospital or care home that the authorisation has ended. Or they may tell the body that granted the authorisation to change or end it.

See our page on the Court of Protection to find out more.

Flowchart: How can I challenge the authorisation?

Where can I get support?

You can get support from an independent mental capacity advocate and a relevant person’s representative (RPR).

What's a relevant person's representative?

This is someone who can keep in touch with you, represent you, and support you in all matters connected with the deprivation of liberty authorisation. For example, this may be a family member, or someone close to you who you trust.

You can choose who you want your relevant person's representative to be if you have the capacity to do so. But there may be reasons that somebody isn't eligible to be your relevant person’s representative. For example, if they work for a care home or hospital, or they have a financial interest in those places.

If you don’t have capacity to choose your relevant person's representative, other people may choose a suitable person for you. Such as:

The identity of your relevant person's representative will be considered during your best interests assessment. If you’ve nominated someone who's willing to act as your relevant person's representative, the best interests assessor must recommend them.

The supervisory body can remove a person from acting as your relevant person's representative if they think the person might not be in contact with you. They may also remove them if the person isn’t acting in your best interests, or is no longer eligible to act as your representative. But they should contact the relevant person's representative to clarify the situation before removing them.

What if I'm in my own home or in supported living?

The Deprivation of Liberty Safeguards can only be used if you're in a care home or hospital. If you're deprived of your liberty anywhere else, an application must be made to the Court of Protection. This should be made by the local authority or Integrated Care Board (ICB) in England. In Wales, this should be made by the Local Health Board. 

How does the application process work?

The body applying for an authorisation must provide the court with the following:

  • Information about your care arrangements and the reason why any restrictions are necessary
  • A capacity assessment showing that you lack capacity to make decisions about your care
  • A medical assessment with your diagnosis
  • Your wishes and feelings about your care
  • The views of anyone interested in your welfare, such as family members

The Court of Protection must consider the best way to involve you in the court case. This might include giving you the opportunity to tell the court what you want. This may involve speaking in the court yourself, or telling someone else what you want the court to know.

It could also include appointing a representative or litigation friend to act for you. They can object to the arrangements for your care if they don’t think they’re in your best interests.

The Court of Protection will authorise the deprivation of liberty if it's satisfied that:

  • You lack capacity to make the decision yourself
  • The arrangements for your care are in your best interests

The authorisation will last for up to a year and will need to go back to court before it ends. It can be returned to court earlier if:

  • The arrangements become more restrictive
  • You regain capacity
  • Someone believes that the arrangements are no longer in your best interests
< Best interests Health and welfare decisions >

This information was published in April 2023. We'll revise it in 2026.

References are available on request. If you would like to reproduce any of this information, see our page on permissions and licensing.

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