Deprivation of Liberty in Safeguarding: Recognising When Restrictions Become Unlawful
Safeguarding can require fast protective action, and that often means restricting a person’s choices or movements. The risk is that temporary safeguarding restrictions can become routine, and routine restrictions can become an unlawful deprivation of liberty if they are not reviewed, justified and evidenced properly.
This article forms part of Mental Capacity, Consent & Safeguarding Decision-Making and should be read alongside risk patterns covered in Understanding Types of Abuse. It focuses on practical provider actions that keep safeguarding restrictions lawful, proportionate and defensible.
Why Deprivation of Liberty Risk Appears in Safeguarding
Safeguarding frequently introduces restrictions for legitimate reasons, for example:
- Preventing contact with an alleged abuser
- Reducing immediate self-neglect or exploitation risk
- Stopping access to unsafe environments during a crisis
- Maintaining safety during a police or multi-agency investigation
The problem is rarely that restrictions start. The problem is that restrictions continue without a clear legal basis, without review, or without evidence that less restrictive options have been tested.
How Restriction Creep Happens in Real Services
Restriction creep is common because safeguarding actions can become embedded into routines. Examples include:
- “Temporary” locked doors becoming normal practice
- One-to-one supervision continuing after risk stabilises
- Phone access being limited indefinitely due to past exploitation
- Community access being reduced because staffing is pressured
From a governance perspective, restriction creep is a red flag because it suggests decisions are being driven by organisational risk management rather than the person’s lawful rights framework.
Operational Example 1: Locked Exit Door Introduced After Assault Allegation
Context: After an assault allegation involving a visitor, a service locked the exit door and introduced staff-managed entry and exit “until things calmed down”. The person affected lacked capacity to weigh the safeguarding risks and became distressed.
Support approach: The provider treated the restriction as an emergency measure with a defined expiry point, escalating to senior review rather than leaving it as an operational default.
Day-to-day delivery detail: Staff introduced a timed plan: immediate protective restriction, daily check-ins with the person, structured access times to maintain routines, and a clear review meeting within 72 hours involving senior management and safeguarding leads.
How effectiveness or change was evidenced: Records showed why the restriction was needed, what alternatives were tested (supervised access, visitor controls, planned outings), and what changes were made when risk reduced. The restriction was reduced rather than becoming “how the service works”.
Recognising the Red Flags That a Restriction May Be Unlawful
Providers should treat the following as escalation triggers for management oversight:
- Staff are controlling when the person can leave, rather than supporting choice
- The person is under continuous or near-continuous supervision
- Restrictions are being justified by “risk” without updated evidence
- The person objects, or would object if they were able to express it clearly
- Restrictions are continuing beyond the immediate safeguarding window
These triggers should prompt a structured review of capacity, consent, lawful basis and least restrictive options.
Operational Example 2: Contact Restriction With a Family Member During Investigation
Context: A person with fluctuating capacity was being financially exploited by a family member. During safeguarding investigation, staff restricted calls and prevented visits. The person repeatedly attempted contact, becoming angry and withdrawn.
Support approach: The provider reframed the safeguarding response as a staged least restrictive plan rather than a blanket ban.
Day-to-day delivery detail: Staff introduced supervised calls at agreed times, increased emotional support before and after contact, and worked with safeguarding partners to set conditions. A senior lead documented the decision-making and built in review dates. Staff used a “restriction reduction plan” that specified what would need to be true for restrictions to reduce further (risk evidence, safeguarding outcomes, capacity reassessment).
How effectiveness or change was evidenced: The provider tracked incidents, emotional wellbeing, attempted contact patterns and any new risk information. The plan evolved with evidence, showing the provider was actively seeking less restrictive options while maintaining protection.
How Providers Evidence Lawful, Proportionate Restriction
To remain defensible, providers should evidence:
- What restriction is in place, in practical terms
- Why it is necessary now, based on current safeguarding risk
- Whether the person has capacity for the specific decision
- What support was offered to maximise decision-making
- What less restrictive options were tested or considered
- How the restriction will be reviewed and reduced
Good documentation does not need to be long, but it must clearly show a lawful thought process linked to the person’s rights and risk.
Operational Example 3: Continuous Supervision Introduced After Self-Neglect Escalation
Context: A person’s severe self-neglect escalated to medical risk. Staff introduced continuous supervision to prevent harm, but the arrangement continued for weeks without clear review.
Support approach: The provider established a formal review pathway and introduced a stepped-down supervision model linked to outcomes and risk evidence.
Day-to-day delivery detail: Staff created a daily risk log, agreed thresholds for stepping down supervision, and ensured the person’s routines were maintained (meals, personal care prompts, community access). Senior management chaired weekly review meetings and ensured capacity reassessment was completed when presentation improved.
How effectiveness or change was evidenced: The provider could show measurable risk reduction, increased engagement, and progressive autonomy restoration rather than indefinite observation. The restriction was treated as time-limited and reviewed.
Commissioner Expectation: Proportionate Safeguarding and Clear Review Points
Commissioner expectation: Commissioners expect providers to demonstrate that restrictions are proportionate to assessed risk, time-limited, and actively reviewed. They will look for evidence that the provider is reducing restriction as soon as it is safe to do so, rather than maintaining high controls as a risk-avoidance default.
Regulator Expectation: Lawful Restriction, Rights Protection and Strong Recording
Regulator / Inspector expectation (e.g. CQC): Inspectors expect providers to understand when safeguarding restrictions impact liberty and to evidence lawful decision-making, least restrictive practice and ongoing review. Poor practice is often revealed through unclear records, inconsistent staff explanations and restrictions continuing without a current rationale.
Governance and Assurance Mechanisms That Prevent Provider Risk
Providers reduce risk by embedding simple safeguards into governance:
- Manager sign-off for any restriction affecting movement, contact or access
- Mandatory review timeframes (e.g., 72 hours, 7 days, 28 days)
- Audit prompts for restriction creep and review compliance
- Supervision templates that ask “what can we reduce next?”
- Escalation thresholds for legal advice, safeguarding lead input or formal authorisation routes
Safeguarding decisions become defensible when providers evidence ongoing, rights-based review rather than relying on good intentions.