Deprivation of liberty in the community: Court of Protection orders

What is a community deprivation of liberty?

It's a deprivation of liberty anywhere other than a hospital or care home: supported living, shared lives, someone's own home or their family's, or a day centre. DoLS can't authorise it, because Schedule A1 covers only hospitals and care homes (DoLS Code 1.20, 10.11).

For someone who lacks capacity, the lawful route is a Court of Protection order. A welfare order under s16(2)(a) can authorise the deprivation of liberty, and it's then its own legal basis (s4A(3)-(4); DoLS Code 10.12). In rare cases the High Court's inherent jurisdiction is used instead (AGNI, para 61).

People often call it a 'community DoLS', but DoLS isn't involved. It's a court order.

Who authorises a community deprivation of liberty?

Usually the Court of Protection, or occasionally the High Court. For a restricted patient, supervised discharge under the MHA can also authorise one. Neither the council nor the care provider can authorise it themselves.

Article 5 bites only where the state is responsible, directly or indirectly (AGNI, para 4). That's usually because a council or NHS body arranges or funds the care. It can also be because public bodies know of a deprivation of liberty by a private party (AGNI, para 116). So the applicant is usually the council or NHS body responsible for the care.

Does AGNI mean fewer community cases need an order?

Yes, probably many fewer. Normality matters again. If someone lives in their own home in line with their wishes and feelings, a deprivation of liberty is less likely. It would take more severe restrictions, such as a combination of restraint, medication and seclusion (AGNI, para 193).

The court also said MIG, from Cheshire West, wasn't deprived of liberty. She lived with a foster mother, was happy there, and her arrangements were as close to normal as possible (AGNI, para 203).

Early numbers suggest the change is real. Court of Protection deprivation of liberty applications fell 13% in April to June 2026, compared with the same quarter a year before (Mental Capacity Report, October 2026).

The first community cases after AGNI

In AR [2026] EWCOP 45, a 25-year-old with learning disability and autism lived in a placement with high supervision, and restraint when needed. He'd never be 'free to leave'. The court found no deprivation of liberty, because of the protective purpose, the relative normality, his community life and the absence of custodial features (para 68).

In Re SM [2026] EWCOP 46, a woman with 2:1 support at all times in the community wasn't confined either. She'd need the same supervision wherever she lived. Neither case is a template: each turns on its facts (Mental Capacity Report, October 2026).

If there's doubt, apply

DHSC wants court applications to continue wherever there's doubt: about objection, about valid consent, where restrictions are significant, or where Article 5 may be engaged. People who swing between seeming content and objecting should be referred (DHSC, September 2026).

Where you decide no order is needed, record why, using the AGNI factors. The person still has Article 8 rights, and the MCA and Care Act duties still apply (AGNI, para 10; DHSC).

Applying for an order: the streamlined procedure

1. Check the person is 16 or over, lacks capacity to consent to the arrangements, and isn't ineligible under Schedule 1A (s16A). Then test the care plan against the AGNI factors.
2. Get the medical evidence: capacity, usually on form COP3, and a diagnosis of 'unsoundness of mind' from a registered medical practitioner. They needn't be s12 approved, and the evidence should be under 12 months old.
3. Complete COP DOL10 and Annex A: the care plan, the restrictions, why they're imputable to the state, and why they're in the person's best interests and the least restrictive option.
4. Consult any attorney or deputy and, if possible, at least three others: people the person has named, carers, or those interested in their welfare (Annex B).
5. Consult the person, through someone who knows them, or an IMCA or other advocate if there's nobody (Annex C). Tell them they can take part, and record their views.
6. Name someone who could represent the person in the proceedings, usually a family member who'll keep the care under review.
7. Flag anything the court should scrutinise. An objection by the person, or any dispute, may mean a hearing instead of a decision on the papers.

When the streamlined procedure isn't suitable

• Any contest, by the person or anyone else, about capacity, the care plan, best interests or whether it's a deprivation of liberty.
• Any objection by the person.
• Gaps in consultation with the person or the people around them.
• A conflict with an advance decision, an attorney or a deputy.
• Concerns arising from the evidence, or the court's own view that a hearing is needed.

These are the form's triggers for an oral hearing. The applicant must make full and frank disclosure of anything that points against the order (COP DOL10). The procedure comes from Re X [2014] EWCOP 25 and 37.

Reviews of community orders

The court reviews an authorisation at least once a year, or sooner if the application asks (COP DOL10). Whoever represents the person should keep the care under review, report on how it's working, and come back to court early if it stops being in their best interests.

The court can vary or discharge its order at any time (s16(7)). If the person becomes ineligible, for example by being detained under the MHA, the authorisation stops having effect while they're ineligible (s16A(2)).

Orders made before AGNI used the acid test. Where the arrangements may no longer be a deprivation of liberty, raise it with the court, at the next review if not before.

16 and 17-year-olds

DoLS start at 18, but the Court of Protection can authorise a deprivation of liberty from 16 (COP DOL10). Parents can't consent to arrangements that deprive a 16 or 17-year-old of liberty (Re D [2019] UKSC 42, para 49).

AGNI applies to them too: for its purposes, 'adults' meant everyone aged 16 and over (para 1). So a young person may now give valid consent through their wishes and feelings. Commentators question whether Re D survives unchanged (Mental Capacity Report, October 2026).

If an order will need to continue past 18, the Court of Protection may suit better than the Family Division (MCA Code 12.24). See children and young people.

What psychiatrists are asked for

Community applications need medical evidence. You may be asked for a COP3 capacity assessment and a letter confirming the diagnosis. Say what the mental disorder is, how it affects the decision about care and residence, and give your name and qualifications (COP DOL10 guidance). See how to assess capacity.

After AGNI, it also helps to describe the person's awareness of their situation, and how they show contentment or objection. That evidence may decide whether there's a deprivation of liberty at all.