Browne Jacobson has a team of experienced lawyers who specialise in advising health and social care organisations, independent providers, specialist education providers and commissioners on issues related to deprivation of liberty.
Deprivation of liberty is a complex issue that can arise in a variety of settings, including nursing and care homes, mental health hospitals, acute care hospitals, social care placements (including children’s placements) and in the community. The law in this area is constantly evolving and has seen several significant developments in recent years. Given the complexity of the legal frameworks and the potential impact on individuals' rights, it is essential to seek expert advice when dealing with issues related to deprivation of liberty.
Our lawyers have a deep understanding of the law in this area. We specialise in Court of Protection and High Court proceedings that involve deprivation of liberty for both adults and children, and we also handle compensation claims that can arise if an individual has been unlawfully deprived of their liberty.
Our team is regarded as one of the country’s leading practices on deprivation of liberty and we act for a broad range of NHS bodies, independent providers, commissioners and local authorities. We are committed to providing our clients with the guidance and support they need to navigate this complex area of law.
"As a Mental Health trust, we have been involved with Browne Jacobson for several years now as our Trust Solicitors when extra support, guidance and legal expertise is required. They provide all our legal support with attendance at Court (CoP, Inquests, Family Court), advice on contracts or HR issues."
"A landmark Supreme Court ruling has fundamentally reshaped deprivation of liberty law in health and social care. Join our expert team as we unpack the immediate consequences of the judgment for your organisation and the people in your care. "Register now
"This is one of the most significant decisions in mental capacity and deprivation of liberty law for over a decade. It takes immediate effect and has significant implications for everyone working in health and social care."Deprivation of liberty law reshaped
Our team of solicitors has a solid understanding of the legal aspects relating to deprivation of liberty in the health and social care sectors. Our deprivation of liberty solicitors are here to offer practical advice and support to a range of clients, including NHS and independent healthcare providers, social care providers, commissioners and specialist education providers.
Our team of solicitors are experts in both mental capacity and mental health law. We can advise on the Deprivation of Liberty Safeguards (DoLS) and deprivations of liberty in community settings.
Our team can also provide representation in both the Court of Protection and High Court. Our aim is to offer you straightforward and clear guidance, working with you to navigate these complex areas effectively.
Our team of in-house barristers have a wealth of experience representing health and social care organisations in proceedings relating to deprivation of liberty; from initial advice on whether there has been a deprivation of liberty to 'section 21A challenges' to a deprivation of liberty safeguard, including urgent applications.
Our deprivation of liberty barristers are trusted by clients to provide pragmatic, straightforward advice utilising both our knowledge of the law and your organisation.
We provide specialist advocacy services throughout the life of a case; attendance at round table discussions, providing specialist advice and pragmatic solutions; drafting statements of case, position statements and written submissions; and advocacy representation at interim hearings and final hearings, before judges of all tiers; as well as more general advice. We are adept at working with other parties towards the common best interests of P, whilst robustly advancing our clients’ position.
With specialist deprivation of liberty barristers in all of our English and Cardiff offices, we’re uniquely positioned to offer coverage across England and Wales, meaning your team can feel supported by us throughout the court process. We’re recognised as a friendly and approachable team, striving to ensure we make your life easier, by knowing you have trusted support and representation, from start to finish.
Clerked professionally, we can provide direct fee quotations for the work we undertake with real clarity on pricing comparable with chambers.
Deprivation of liberty is a complex issue that can pose significant challenges for providers and commissioners of health and social care. Our lawyers understand what constitutes a deprivation of liberty and can advise whether it has arisen in a particular case.
There are different legal frameworks available to authorise a deprivation of liberty, such as the Deprivation of Liberty Safeguards or a court authorised deprivation of liberty. The correct authorisation process will depend on the type of setting in which the deprivation of liberty occurs and the factual circumstances.
Our lawyers have a thorough understanding of the authorisation routes and processes, and can guide you through even the most complex of cases. We are committed to providing our clients with the most up-to-date and accurate legal advice, based on the latest case law and legislative developments.
We are also able to review or draft policies and protocols in relation to deprivation of liberty.
Deprivation of liberty matters often require involvement from the courts, which can be a difficult and challenging process. For example, a provider or commissioner may need to apply to the court to authorise the deprivation of liberty of an adult or child, or a person may seek to challenge their deprivation of liberty via the courts. The circumstances will dictate which court needs to be involved.
Our team has vast experience in both Court of Protection and High Court proceedings involving deprivation of liberty. In particular, we are experts in helping clients to apply to court to authorise a deprivation of liberty via the streamlined 'Re X' procedure and we are proficient in assisting organisations to respond to 'section 21A challenges' – where a person seeks to challenge the standard or urgent authorisation that has been granted under the Deprivation of Liberty Safeguards.
We operate a 24-hour service to our clients. This enables us to assist with urgent matters that arise unexpectedly, or where emergency applications to court are required.
Where a deprivation of liberty occurs in a community setting, such as a supported living placement or a person's own home, the Deprivation of Liberty Safeguards scheme does not apply and authorisation must be sought from the Court of Protection. For non-contentious cases, the streamlined Re X procedure can be used, which allows for court authorisation of a community deprivation of liberty on the papers without a full hearing.
Browne Jacobson has a dedicated team with extensive experience in acting for Integrated Care Boards (ICBs), local authorities and Trusts with delegated ICB duties in Re X community deprivation of liberty applications. We can assist with the end-to-end process, from advising on whether a particular community arrangement constitutes a deprivation of liberty to preparing and filing court applications and supporting clients through any contested proceedings. We can tailor our Re X service to your organisation’s particular needs and will always welcome a discussion as to how we can help.
We can also provide training on the Re X community DOL process.
Our specialist team are experts in all matters related to mental capacity and mental health law. Please see our separate mental capacity and mental health pages for further information.
Deprivation of Liberty training
We understand the importance of ensuring that all staff within health and social care organisations have a good understanding of deprivation of liberty. Our team offers training on both the Mental Capacity Act and deprivation of liberty, including the statutory Best Interests Assessor refresher training.
Our training is designed to provide staff with a comprehensive understanding of what a deprivation of liberty is, how to identify if it has arisen and the different ways in which a deprivation of liberty can be authorised. We can tailor our training to meet the specific needs of your organisation, ensuring that it is relevant and engaging for your staff.
Our training is delivered by experienced lawyers who have a friendly, down-to-earth style. They can provide examples and case studies to help staff understand how the law applies in real-life situations.
Mental capacity and deprivation of liberty forums
We hold mental health, mental capacity and deprivation of liberty case law update sessions, specifically designed for professionals in the health and social care sectors. These informative sessions are hosted on MS Teams and are free to attend. Our specialist lawyers provide summaries of recent key cases, along with valuable insights for your practice.
We also present case law update sessions at various regional forums and networks. We focus on the most recent and significant mental capacity and deprivation of liberty cases, to keep attendees abreast of the latest developments and guidance from the courts.
Browne Jacobson runs a regular Shared Insights forum, which is designed for those working within NHS organisations, local authorities, independent health and social care providers and those specialising in mental health. Each session is an hour long, delivered via Microsoft Teams and focusses on a pressing issue or sector challenge. The forum is chaired by a Browne Jacobson lawyer and features a panel of guest speakers.
The Shared Insights programme includes a regular safeguarding forum, with a focus on mental capacity and mental health related issues. Our previous sessions have looked at the challenges caused by disordered eating in education, health and social care settings and prolonged disorders of consciousness.
To find out more about Shared Insights and to join a future session, please visit our Shared Insights hub.
Our team of solicitors has a solid understanding of the legal aspects relating to deprivation of liberty in the health and social care sectors. Our deprivation of liberty solicitors are here to offer practical advice and support to a range of clients, including NHS and independent healthcare providers, social care providers, commissioners and specialist education providers.
Our team of solicitors are experts in both mental capacity and mental health law. We can advise on the Deprivation of Liberty Safeguards (DoLS) and deprivations of liberty in community settings.
Our team can also provide representation in both the Court of Protection and High Court. Our aim is to offer you straightforward and clear guidance, working with you to navigate these complex areas effectively.
Our team of in-house barristers have a wealth of experience representing health and social care organisations in proceedings relating to deprivation of liberty; from initial advice on whether there has been a deprivation of liberty to 'section 21A challenges' to a deprivation of liberty safeguard, including urgent applications.
Our deprivation of liberty barristers are trusted by clients to provide pragmatic, straightforward advice utilising both our knowledge of the law and your organisation.
We provide specialist advocacy services throughout the life of a case; attendance at round table discussions, providing specialist advice and pragmatic solutions; drafting statements of case, position statements and written submissions; and advocacy representation at interim hearings and final hearings, before judges of all tiers; as well as more general advice. We are adept at working with other parties towards the common best interests of P, whilst robustly advancing our clients’ position.
With specialist deprivation of liberty barristers in all of our English and Cardiff offices, we’re uniquely positioned to offer coverage across England and Wales, meaning your team can feel supported by us throughout the court process. We’re recognised as a friendly and approachable team, striving to ensure we make your life easier, by knowing you have trusted support and representation, from start to finish.
Clerked professionally, we can provide direct fee quotations for the work we undertake with real clarity on pricing comparable with chambers.
Deprivation of liberty is a complex issue that can pose significant challenges for providers and commissioners of health and social care. Our lawyers understand what constitutes a deprivation of liberty and can advise whether it has arisen in a particular case.
There are different legal frameworks available to authorise a deprivation of liberty, such as the Deprivation of Liberty Safeguards or a court authorised deprivation of liberty. The correct authorisation process will depend on the type of setting in which the deprivation of liberty occurs and the factual circumstances.
Our lawyers have a thorough understanding of the authorisation routes and processes, and can guide you through even the most complex of cases. We are committed to providing our clients with the most up-to-date and accurate legal advice, based on the latest case law and legislative developments.
We are also able to review or draft policies and protocols in relation to deprivation of liberty.
Deprivation of liberty matters often require involvement from the courts, which can be a difficult and challenging process. For example, a provider or commissioner may need to apply to the court to authorise the deprivation of liberty of an adult or child, or a person may seek to challenge their deprivation of liberty via the courts. The circumstances will dictate which court needs to be involved.
Our team has vast experience in both Court of Protection and High Court proceedings involving deprivation of liberty. In particular, we are experts in helping clients to apply to court to authorise a deprivation of liberty via the streamlined 'Re X' procedure and we are proficient in assisting organisations to respond to 'section 21A challenges' – where a person seeks to challenge the standard or urgent authorisation that has been granted under the Deprivation of Liberty Safeguards.
We operate a 24-hour service to our clients. This enables us to assist with urgent matters that arise unexpectedly, or where emergency applications to court are required.
Where a deprivation of liberty occurs in a community setting, such as a supported living placement or a person's own home, the Deprivation of Liberty Safeguards scheme does not apply and authorisation must be sought from the Court of Protection. For non-contentious cases, the streamlined Re X procedure can be used, which allows for court authorisation of a community deprivation of liberty on the papers without a full hearing.
Browne Jacobson has a dedicated team with extensive experience in acting for Integrated Care Boards (ICBs), local authorities and Trusts with delegated ICB duties in Re X community deprivation of liberty applications. We can assist with the end-to-end process, from advising on whether a particular community arrangement constitutes a deprivation of liberty to preparing and filing court applications and supporting clients through any contested proceedings. We can tailor our Re X service to your organisation’s particular needs and will always welcome a discussion as to how we can help.
We can also provide training on the Re X community DOL process.
Our specialist team are experts in all matters related to mental capacity and mental health law. Please see our separate mental capacity and mental health pages for further information.
Deprivation of Liberty training
We understand the importance of ensuring that all staff within health and social care organisations have a good understanding of deprivation of liberty. Our team offers training on both the Mental Capacity Act and deprivation of liberty, including the statutory Best Interests Assessor refresher training.
Our training is designed to provide staff with a comprehensive understanding of what a deprivation of liberty is, how to identify if it has arisen and the different ways in which a deprivation of liberty can be authorised. We can tailor our training to meet the specific needs of your organisation, ensuring that it is relevant and engaging for your staff.
Our training is delivered by experienced lawyers who have a friendly, down-to-earth style. They can provide examples and case studies to help staff understand how the law applies in real-life situations.
Mental capacity and deprivation of liberty forums
We hold mental health, mental capacity and deprivation of liberty case law update sessions, specifically designed for professionals in the health and social care sectors. These informative sessions are hosted on MS Teams and are free to attend. Our specialist lawyers provide summaries of recent key cases, along with valuable insights for your practice.
We also present case law update sessions at various regional forums and networks. We focus on the most recent and significant mental capacity and deprivation of liberty cases, to keep attendees abreast of the latest developments and guidance from the courts.
Browne Jacobson runs a regular Shared Insights forum, which is designed for those working within NHS organisations, local authorities, independent health and social care providers and those specialising in mental health. Each session is an hour long, delivered via Microsoft Teams and focusses on a pressing issue or sector challenge. The forum is chaired by a Browne Jacobson lawyer and features a panel of guest speakers.
The Shared Insights programme includes a regular safeguarding forum, with a focus on mental capacity and mental health related issues. Our previous sessions have looked at the challenges caused by disordered eating in education, health and social care settings and prolonged disorders of consciousness.
To find out more about Shared Insights and to join a future session, please visit our Shared Insights hub.
'Deprivation of liberty' isn’t defined by statute. In Storck v Germany [2005], the European Court of Human Rights held that there are three necessary elements for a deprivation of liberty:
a) the objective component: confinement in a particular place for a non-negligible period of time;
b) the subjective component: lack of valid consent to the confinement; and
c) the confinement being attributable to the state
Under Article 5 of the European Convention on Human Rights, a deprivation of liberty can only be lawful if it is in accordance with a procedure prescribed by law, for example, through the Deprivation of Liberty Safeguards (DoLS) or a Court of Protection order.
In a landmark judgment in June 2026 (A Reference by the Attorney General for Northern Ireland [2026] UKSC 16), the Supreme Court overruled its own 2014 decision in Cheshire West, declaring that the previous "acid test" (for determining whether the objective element of deprivation of liberty was met) was wrong in principle. The acid test asked simply whether a person was under continuous supervision and control and not free to leave, which the Supreme Court held was too crude in its application.
Whether someone is deprived of their liberty now requires a multifactorial assessment of the person’s specific situation, taking into account factors such as the type, duration, effects, and manner of any restrictions. Relevant considerations now include whether the person objects to or is content with their arrangements, the normality of the setting, and the purpose of any restrictions in place. Importantly, lacking mental capacity under the Mental Capacity Act to consent to care and living arrangements no longer automatically means a person cannot give valid consent to their confinement. A person may lack capacity in this area and yet still genuinely accept and communicate their happiness about their living arrangements in a way that means Article 5 is not engaged.
The Northern Ireland Reference case [2026] confirmed that deprivation of liberty requires a multifactorial assessment of a person’s specific situation, with no single factor being determinative. Relevant factors include:
A deprivation of liberty can arise in a variety of settings, including in care or nursing homes, acute hospitals, mental health hospitals, supported living placements, children’s homes and even a person’s own home. Anyone of any age can be deprived of their liberty.
If a deprivation of liberty is identified, then it must be authorised. There are different ways to authorise a deprivation of liberty, depending on where it arises and how old the person is.
It is vital that any deprivation of liberty is authorised in the correct way, since depriving a person of their liberty without authorisation is unlawful and can have serious repercussions. Our team can guide you seamlessly through the correct authorisation process in any given situation.
We have a dedicated team that handles Re X community deprivation of liberty applications – the streamlined court process by which community care arrangements that constitute a deprivation of liberty can be lawfully authorised. We act for a range of ICBs, local authorities and Trusts with delegated ICB duties, and are well placed to assist clients with this process.
We often represent clients in cases where children are being deprived of their liberty.
Notable examples include Wigan BC v Y (Refusal to Authorise Deprivation of Liberty) [2021] EWHC 1982 (Fam), which concerned the deprivation of liberty of a 12-year-old child with mental health issues on an acute hospital ward.
Also the case of Re Troy (A Child) [2022] EWHC 3426 (Fam), in which the court authorised the deprivation of liberty of a 15 year-old boy with mental health problems and behavioural difficulties on an acute hospital ward, given there was no alternative place for him to live and the restrictions placed upon him were required to keep him safe.
Both cases highlighted the shortage of appropriate placements for children facing similar challenges and attracted significant media attention.
Advising the Ministry of Justice on the draft Court of Protection forms and practice direction for the streamlined “Re X” application process, as well as involvement in the Re X case in the Court of Protection and the Court of Appeal.
We represented a local authority in a case where a young man with autism and learning difficulties was being deprived of his liberty in his supported living placement. We supported the local authority in obtaining a deprivation of liberty order from the court, to authorise the restrictive but necessary care arrangements.
"As a Mental Health trust, we have been involved with Browne Jacobson for several years now as our Trust Solicitors when extra support, guidance and legal expertise is required. They provide all our legal support with attendance at Court (CoP, Inquests, Family Court), advice on contracts or HR issues."
"The team I head helps the NHS to save the lives of vulnerable adults and children in urgent medical treatment cases which gives me a lot of satisfaction."Find out more
Deprivation of Liberty Safeguards was due to transition to Liberty Protection Safeguards in October 2020 but delayed due to the pandemic. While the public consultation has now closed and we’re still unclear of what the final legislation and code will look like, it’s worth noting and keeping a watching brief.
The Liberty Protection Safeguards (LPS) were introduced in the Mental Capacity (Amendment) Act 2019 and will replace the Deprivation of Liberty Safeguards (DoLS) system. The LPS framework aims to deliver improved outcomes for people who are or who need to be deprived of their liberty.
Following on from the first webinar in the Liberty Protection Safeguards (“LPS”) series delivered by Mark Barnett and Chris Stark, the key points below from the webinar are summarised below.
The long-awaited draft Mental Capacity Act Code of Practice, including the Liberty Protection Safeguards (“LPS”), has landed.
The Supreme Court has granted permission to appeal the decision of the Court of Appeal in the case of Jacqueline Maguire v HM Senior Coroner for Blackpool and Fylde in which the Coroner ruled that Article 2 of the European Convention on Human Rights (the right to life) was not engaged.
The Liberty Protection Safeguards (LPS) will be used to authorise the proportionate and necessary deprivation of liberty for people aged 16 and above who lack the mental capacity to consent to their care arrangements.
Watch now on-demand our Mental Health and Court of Protection Legal Update webinar, there have been some interesting recent legal developments in this area and topics that were covered during the session.
