Sample policy · Domiciliary care

Community deprivation of liberty and the Court of Protection policy (domiciliary care)

Statutory anchor: Regulation 13(5) (lawful authority for any deprivation of liberty), Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (SI 2014/2936). The primary legal framework for this policy is the Mental Capacity Act 2005, its Code of Practice and current case law (the Court of Protection route, not the Deprivation of Liberty Safeguards, authorises a deprivation of liberty in a person's own home). · primary source

1. What the regulation says

Service users must be protected from abuse and improper treatment in accordance with this regulation. (Reg 13(1) (the headline duty))

A service user must not be deprived of their liberty for the purpose of receiving care or treatment without lawful authority. (Reg 13(5) (lawful authority for deprivation of liberty))

Where care or treatment is provided to a person aged 16 or over who lacks capacity, Regulation 11 (need for consent) directs the provider to the Mental Capacity Act 2005:

Care and treatment of service users must only be provided with the consent of the relevant person. (Reg 11(1): the headline duty)

The full text is at https://www.legislation.gov.uk/uksi/2014/2936/regulation/13 and https://www.legislation.gov.uk/uksi/2014/2936/regulation/11. The Mental Capacity Act 2005 is at https://www.legislation.gov.uk/ukpga/2005/9/contents. Where this policy and the regulation diverge, the regulation wins.

2. Plain-English summary

Service users must be protected from abuse and improper treatment, and a service user must not be deprived of their liberty for the purpose of receiving care or treatment without lawful authority. You can only provide care or treatment with the consent of the relevant person; if the person is 16 or over and lacks capacity, you follow the Mental Capacity Act 2005. In a person's own home, a deprivation of liberty cannot be authorised through the Deprivation of Liberty Safeguards, which apply only to care homes and hospitals; the lawful authority comes from the Court of Protection. Whether arrangements amount to a deprivation of liberty is now a multifactorial assessment following the Supreme Court judgment of 2 June 2026. Providers should use DHSC's guidance published on 15 June 2026 and seek legal advice where the position remains uncertain.

3. Purpose

Sometimes the care a person needs at home includes restrictions: a worker present much of the day, controls on going out alone, sensors, or a locked door for safety. Where a person lacks the capacity to agree to those restrictions, they can add up to a deprivation of the person's liberty, which the law allows only when it is properly authorised. In a person's own home that authorisation does not come through the Deprivation of Liberty Safeguards, which apply only in care homes and hospitals, but through the Court of Protection. This policy sets out how the Service recognises a possible deprivation of liberty in someone's home and what it does about it.

The Service must verify this policy against the Mental Capacity Act, its Code of Practice and current case law before adoption.

4. Scope

This policy applies to:

5. Roles and responsibilities

6. Operating procedure for possible community deprivation of liberty

The Service follows this procedure:

  1. Identify restrictions. Staff record restrictions, supervision, monitoring, prevented movement, locked doors, medication used to manage behaviour, or any arrangement that limits the person's freedom.
  2. Check capacity and wishes. Confirm whether there is a decision-specific capacity assessment and whether the person's wishes, feelings, objections or compliance have been explored and recorded.
  3. Check best interests and least restriction. Confirm the reason for each restriction, alternatives considered and why the current arrangement is the least restrictive practical option.
  4. Escalate promptly. If the arrangement may amount to a deprivation of liberty, raise it with the Registered Manager and the local authority or commissioner in writing.
  5. Support external process. Provide care-plan, capacity, best-interests, risk and review evidence to support the lawful-authority process.
  6. Follow the order or decision. Where the Court of Protection makes an order, record the requirements, expiry or review date and any conditions the Service must follow.
  7. Review restrictions. Review restrictions whenever needs change, the person objects, an incident occurs, the order is due for review, or a less restrictive option becomes available.
  8. Act on concerns. If a restriction appears unauthorised, excessive or unsafe, treat it as a safeguarding and governance concern and seek urgent advice.

7. The Mental Capacity Act in someone's own home

The Service follows the principles of the Mental Capacity Act in everything it does:

Capacity is decision-specific: a person may be able to make some decisions and not others, and capacity can change over time.

8. What a deprivation of liberty means

A deprivation of liberty is not the same as ordinary care or a single restriction. Whether care arrangements amount to a deprivation of a person's liberty is a multifactorial assessment, taking the arrangements as a whole. Whether arrangements amount to a deprivation of liberty must be assessed in the round. Continuous supervision and control, lack of freedom to leave, the person's wishes, objection or compliance, the nature, duration, intensity, purpose and effect of restrictions, and the legal context may all be relevant. No single factor is determinative. Staff must not treat the old Cheshire West "acid test" as a complete test. Where the person lacks the capacity to consent to the arrangements and the arrangements are the responsibility of the state (for example care arranged or funded by a local authority), the arrangement may be a deprivation of liberty that needs authorising. The assessment of whether arrangements engage Article 5 of the European Convention on Human Rights, and any analysis of valid consent to confinement for Article 5 purposes, is a separate legal question from a Regulation 11 consent decision or a Mental Capacity Act capacity assessment, and the Service does not treat them as the same thing.

9. Why the Deprivation of Liberty Safeguards do not apply at home

The Deprivation of Liberty Safeguards authorise a deprivation of liberty only in a care home or a hospital. A person being cared for in their own home is in neither. So a deprivation of liberty in a person's own home cannot be authorised through the Safeguards. Instead it must be authorised by the Court of Protection. Using a Safeguards authorisation for a person at home would be wrong, and the Service does not rely on one.

10. Recognising a possible deprivation of liberty

Workers and senior staff stay alert to care arrangements that, taken together, may amount to a deprivation of a person's liberty, for example:

No single item decides it. The assessment is made in the round, weighing all the relevant factors together, and no single factor is determinative.

11. What the Service does

The Service does not authorise a deprivation of liberty itself, and the application to the Court of Protection is usually made by the local authority that arranges or funds the care. The Service:

12. Advocacy and involving the person

The Service makes sure the person is at the centre of decisions about them. Where a person who lacks capacity has no family or friend able to represent them, the Service supports a referral for an independent advocate (an Independent Mental Capacity Advocate). The person's own wishes, feelings and views are sought and recorded whatever their capacity.

13. Keeping restrictions to the least needed, and reviewing them

The Service keeps any restriction to the least that keeps the person safe, and reviews it regularly. A restriction is removed as soon as it is no longer needed. The Service does not let a restriction continue out of habit.

14. Records and register links

For each person where this policy applies, the Service records the capacity assessments, the best-interests decisions, the restrictions in place and why, when a possible deprivation of liberty was raised with the local authority, and any Court of Protection order and review date. The record should include:

Possible deprivation-of-liberty concerns are tracked through the risk register until the lawful-authority position is clear. Safeguarding concerns, restraint concerns, complaints or incidents are linked to their own registers. Improvement actions are tracked to completion and reviewed through governance.

15. Training and supervision

Staff who support people where restrictions may arise must understand the Mental Capacity Act principles, decision-specific capacity, best interests, least restriction, advocacy, how to spot possible deprivation of liberty, and when to escalate. Supervisors should use supervision, care-plan review and incident review to check that restrictions have not grown informally or continued out of habit.

16. Audit cadence

The Service checks, on a stated cadence, that:

The Registered Manager reviews the results and records the improvement actions that follow.

17. Sources and further reading

This template is based on CQC's guidance for providers and managers, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, and other topic-specific legislation and guidance listed below. It is a starting point for adaptation, not a substitute for legal, clinical, HR, safeguarding or specialist professional advice.

18. Related reading

19. When to seek further advice

Seek specialist advice where the issue involves serious harm, safeguarding, deprivation of liberty, restraint, children, professional misconduct, controlled drugs, radiation, termination of pregnancy, infection outbreak, water safety, employment dismissal, DBS barring referral, or regulatory enforcement.

20. Document control

Version Date Author Changes
v1.2 2026-07-21 Verivius (sample) Replaced the pending-guidance wording with current DHSC guidance on the 2026 Supreme Court judgment.
v1.1 2026-07-12 Verivius (sample) Added role ownership, operating procedure, record fields, register links, training and supervision controls for possible community deprivation-of-liberty concerns.
v1 2026-06-10 Verivius (sample) Initial sample template, conformed to the Verivius policy standard.

This sample policy template was issued by Verivius. It is a template, not a substitute for legal advice or the provider's own policy-development process. Where this template and live law or regulator guidance diverge, the live source wins.

What good looks like here

Written from an ex-CQC inspector's chair, but the point is safe, well-led care your team can stand behind. Each row shows what strong evidence looks like, what thin evidence looks like, and where the expectation comes from.

A person's own home is the one setting where restrictions can build up with almost nobody watching. A locked door here, keys held there, a sensor mat added after a fall, a worker who stays a little longer each week: every step is well meant and defensible on its own, and together they can quietly become a life the person never agreed to, in the place they have the most right to feel free. Because the Deprivation of Liberty Safeguards reach only care homes and hospitals, no external assessor ever arrives to test the arrangement. The people who see the whole picture are the care workers in the house, and the person who might object may not be able to say so. Since the AGNI judgment of 2 June 2026 the question is answered by weighing the arrangements as a whole, with no single factor decisive, which makes the written trail of what was restricted, why, what less restrictive option was tried and when it was raised with the local authority the substance of the decision rather than paperwork about it. Keeping that trail honest is how a person holds on to their front door, their afternoon walk and their contact with friends for as long as it is safe, and how the service can tell the difference between care and confinement.

  1. Restrictions that together may amount to a deprivation of a person's liberty are identified and raised in writing with the local authority, rather than quietly continued while restrictive care carries on.

    Strong evidence: Date the possible deprivation of liberty was raised with the local authority or commissioner, with evidence of the communication; the audit that possible deprivations of liberty have been raised and not left unaddressed.

    Weak evidence: The care plan lists the locked door, the sensor mat and the worker who stays all day as ordinary tasks, and nobody has ever stood back and asked whether together they now need lawful authority. Or the escalation exists only as "mentioned it to the social worker": no date, no named recipient, no copy of the email, no record of what was asked for, and no chase when the local authority does not reply while the restrictive care carries on.

    Our recommended baseline. Not a legal or regulatory requirement, but a sensible standard we suggest where the rules leave the detail to you. Adapt it to your service.

  2. The Service reaches for the correct lawful authority, which for a person in their own home is the Court of Protection route, supporting the local authority's application. It never relies on a Deprivation of Liberty Safeguards authorisation and never authorises the deprivation itself, since the Safeguards apply only in care homes and hospitals.

    Strong evidence: Any Court of Protection order recorded with its conditions, expiry or review date; records showing the Service supporting, not making, the application.

    Weak evidence: A Deprivation of Liberty Safeguards authorisation, or a note saying one has been applied for, sitting in the file of someone living in their own flat, sometimes a standard authorisation carried over from a previous care home stay and treated as still holding. Or the family, an attorney or a deputy is recorded as having agreed the restrictions on the person's behalf, as though that agreement made them lawful, or a Court of Protection order is filed with no note of its conditions, expiry or review date, so no one can say whether it still covers what is happening today.

    A legal duty. This comes from legislation that applies to your service, so meeting it is not optional. The exact provision is cited beneath the badge.

    Mental Capacity Act 2005 s.4A(3)-(5) and s.16(2)(a) (Court of Protection order as the route to authorise a deprivation), Sch A1 para 1 (DoLS confined to hospitals and care homes); Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, reg 13(5)

  3. A possible deprivation of liberty is assessed in the round, weighing all the relevant factors with no single factor treated as decisive, and rests on a decision-specific capacity assessment rather than a single acid test.

    Strong evidence: The capacity assessment and the decision it relates to; the person's wishes, feelings, objections, compliance or distress recorded whatever their capacity.

    Weak evidence: A capacity assessment that ticks "lacks capacity" as a global label rather than naming the decision it relates to, such as going out alone or having the door locked at night, completed once when the package started and never revisited. Or the assessment recites continuous supervision and not being free to leave as if that settled the question, with no weighing of the duration, intensity, purpose and effect of the arrangements, while the daily notes record only "settled, no issues" and never capture that the person asks to go out every afternoon.

    A legal duty. This comes from legislation that applies to your service, so meeting it is not optional. The exact provision is cited beneath the badge.

    Mental Capacity Act 2005 s.2(1) and s.3 (capacity assessed in relation to the specific matter), applied to providers by Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, reg 11(3); Human Rights Act 1998 Sch 1 Art 5

  4. Each restriction has a recorded best-interests decision and less restrictive alternatives, and is reviewed and removed when it is no longer needed rather than continued out of habit.

    Strong evidence: Best-interests decision and less restrictive alternatives considered, with a review date; the audit that restrictions are the least needed and are reviewed.

    Weak evidence: The same restrictions copied forward word for word through review after review across a year, each one signed off as "continue as before", with nothing ever removed and no reassessment of whether it is still needed. Or the best-interests record names the decision but not the alternatives, or lists alternatives as "none available" with no reasoning, and restrictions introduced informally by workers for practical convenience, such as holding the keys or moving the walking frame out of reach, never reach the plan at all.

    A legal duty. This comes from legislation that applies to your service, so meeting it is not optional. The exact provision is cited beneath the badge.

    Mental Capacity Act 2005 s.1(6) (less restrictive option) and s.4 (best interests, incl. s.4(6)), applied to providers by Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, reg 11(3); record-keeping under reg 17(2)(c)

  5. A person who lacks capacity and has no family or friend able to represent them is referred for an Independent Mental Capacity Advocate, so that someone independent speaks for them when restrictions are decided.

    Strong evidence: Family, representative, advocate or professional involvement recorded; the audit that advocacy is offered where the person has no one to represent them.

    Weak evidence: "No family" recorded in the file with no next step, or a referral for an Independent Mental Capacity Advocate discussed at a review meeting and never actually made or evidenced. Or a paid worker, or a relative who has had no contact for years, is treated as the person's representative, or an advocate was involved once at the outset and never returned to when the restrictions grew.

    Our recommended baseline. Not a legal or regulatory requirement, but a sensible standard we suggest where the rules leave the detail to you. Adapt it to your service.

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Last verified 20 July 2026

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Last reviewed 21 July 2026