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

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 AGNI Supreme Court judgment of 2 June 2026, and providers may need legal advice while DHSC guidance is pending.

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:

• people the Service supports in their own home who may lack the capacity to agree to restrictions in their care
• care arrangements that restrict a person's freedom for their safety or wellbeing
• workers and senior staff who deliver, plan and review that care

5. Roles and responsibilities

• Registered Manager: owns this policy, ensures possible deprivation-of-liberty concerns are identified and escalated, and checks that restrictions are reviewed.
• MCA or safeguarding lead, where appointed: advises staff, reviews capacity and best-interests records, and supports liaison with the local authority or commissioner.
• Care coordinator or care planner: records restrictions in the care plan, keeps review dates visible and checks whether the local authority or commissioner has been told.
• Care workers: follow the care plan, report new or increasing restrictions, record the person's wishes and do not add restrictions informally.
• Local authority or commissioner: is usually the body that considers the application route where it arranges or funds the care. The Service supports that process but does not authorise deprivation of liberty itself.

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:

• a person is assumed to have capacity unless it is shown otherwise
• a person is given all practicable help to make their own decision before anyone concludes they cannot
• a person is allowed to make a decision others think unwise
• a decision made for a person who lacks capacity is made in their best interests
• that decision is the one that restricts the person's rights and freedom the least

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:

• a worker present for most or all of the day, controlling what the person does
• preventing the person from leaving the home, or only allowing it with a worker
• locking doors, or using sensors, alarms or other means to monitor or restrict movement
• restricting contact with other people
• giving medicine to calm or restrict the person

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:

• raises a possible deprivation of liberty with the person's local authority or commissioner promptly, in writing
• supports any capacity assessment and best-interests process
• supports the local authority's application to the Court of Protection and follows any order the court makes
• never simply continues restrictive care without raising it

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:

• restriction or supervision arrangement being considered
• capacity assessment and decision it relates to
• person's wishes, feelings, objections, compliance or distress
• family, representative, advocate or professional involvement
• best-interests decision and less restrictive alternatives considered
• date raised with the local authority or commissioner, with evidence of the communication
• legal order, conditions, expiry date or review date where applicable
• care-plan changes and staff instructions
• incidents, safeguarding concerns, complaints or restraint records linked to the restriction
• actions opened and review owner

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:

• capacity assessments and best-interests decisions are recorded where restrictions are in place
• possible deprivations of liberty have been raised with the local authority and not left unaddressed
• any Court of Protection order is being followed and reviewed
• restrictions are the least needed and are reviewed, and advocacy is offered where the person has no one to represent them

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.

• CQC Regulation 13: Safeguarding service users from abuse and improper treatment (including Reg 13(5), lawful authority for any deprivation of liberty)
• CQC Regulation 11: Need for consent
• Mental Capacity Act 2005 (https://www.legislation.gov.uk/ukpga/2005/9/contents)
• Human Rights Act 1998 (Article 5 of the European Convention on Human Rights)
• AGNI Supreme Court judgment (2 June 2026): whether arrangements amount to a deprivation of liberty is a multifactorial assessment, with no single "acid test"
• CQC statement of 8 June 2026 on the judgment (immediate effect; providers may need legal advice; Mental Capacity Act 2005 and Regulation 11 unchanged; DHSC guidance pending)
• MCA Code of Practice (2007, update in consultation)
• CQC DoLS State of Care
• Local authority DoLS team
• Court of Protection (https://www.gov.uk/courts-tribunals/court-of-protection)

18. Related reading

• Guide: Domiciliary care compliance guide
• Regulation explainer: Mental Capacity Act decisions
• Article: Regulation 13 safeguarding evidence

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

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