Care should never come at the cost of freedom.
But when a person loses the ability to make certain decisions for themselves, professionals sometimes have to limit their choices to keep them safe.
That’s where Article 5 of the European Convention on Human Rights comes in — the law that protects everyone’s right to liberty.
It’s the reason why no hospital, care home or local authority can restrict someone’s freedom without proper authorisation.
And it’s the foundation of the Deprivation of Liberty Safeguards, the legal framework that ensures care stays lawful, necessary and fair.
This article explains what Article 5 protects, how it links to DoLS orders and applications for DoLS and why it matters for families, professionals and anyone receiving care.
Article 5 sets a simple rule: no one can be deprived of liberty unless the law allows it and the process is followed properly.
That rule became part of British law through the Human Rights Act 1998.
But for years, there was a gap when it came to people who lacked mental capacity – individuals who weren’t detained under the Mental Health Act but who still couldn’t freely leave their care environment.
The gap became clear in 2004 after the Bournewood case, where a man with autism was kept in hospital under constant supervision without consent or legal process. The courts ruled that this breached Article 5.
To close that gap, the government introduced the Deprivation of Liberty Safeguards in 2009 under the Mental Capacity Act 2005.
DoLS exist for one reason: to protect people’s freedom when they cannot protect it themselves.
DoLS turn the principles of Article 5 into a practical process.
They set out exactly when and how a person’s liberty can be restricted in a care home or hospital and what safeguards must be in place to keep that restriction lawful.
Without DoLS (or a deprivation of liberty order from the Court of Protection), any restriction of liberty is unlawful, even if done with good intentions.
So, what exactly does Article 5 protect in these cases?
This is the starting point. Everyone has a right to liberty and security.
In care settings, that means people cannot be kept under continuous supervision, have their movements controlled or be prevented from leaving unless a lawful authorisation is in place either through a DoLS order or a deprivation of liberty order granted by the court.
It’s not about stopping care. It’s about ensuring that when care limits freedom, it does so with legal oversight.
If someone’s liberty is restricted, they or their representative must be told why.
That includes:
Transparency is essential. It turns care from something done to a person into something done with them.
Article 5 guarantees the right to appeal against any deprivation of liberty.
In England and Wales, that means a person, their family or their Relevant Person’s Representative can take the case to the Court of Protection if they believe the restriction is unnecessary or too severe.
The court can cancel the authorisation, adjust the conditions or request new assessments.
This ensures liberty isn’t lost quietly or indefinitely.
No one should ever be deprived of liberty indefinitely.
Under DoLS, authorisations must be reviewed regularly and they can last no longer than 12 months. If a person’s situation changes or their capacity improves, a new assessment must take place.
This constant review ensures that restrictions remain proportionate and temporary, not permanent by neglect.
If someone is deprived of liberty unlawfully for example, without proper authorisation or after an order has expired they have the right to take legal action and seek compensation.
This isn’t about blame. It’s about accountability. It reinforces that every restriction of liberty must stand up to legal and ethical scrutiny.
Article 5 is what keeps power in check.
It reminds public authorities that liberty isn’t optional, even when capacity is lost.
Without it, restrictions could slip into routine decisions made for convenience rather than need.
With it, there’s a constant legal reminder that every restriction must be justified.
Every assessment must be recorded.
Every decision must be open to challenge.
That’s what makes Article 5 one of the most important human rights protections in modern care law.
Behind every DoLS case is a person – someone’s parent, partner or friend.
The purpose of Article 5 isn’t to create bureaucracy. It’s to make sure that those people are never treated as passive subjects of care.
It keeps the focus where it should be: on the individual’s dignity, independence and right to live under law, not convenience.
When used properly, DoLS do more than protect professionals from liability. They protect the humanity of the person receiving care.
Navigating DoLS can be daunting for families and care professionals alike. The rules are detailed and the difference between lawful and unlawful restriction can turn on a single process.
That’s where court of protection solicitors come in.
They help:
Good legal advice doesn’t just resolve disputes – it prevents them. It gives families confidence that care decisions are being made fairly, transparently and with the right legal backing.
The government plans to replace DoLS with the Liberty Protection Safeguards (LPS). The new system is designed to simplify authorisations and apply across more settings.
But one thing won’t change: Article 5.
Whatever the system is called, the right to liberty and the requirement for lawful justification will always sit at the centre of it.
Article 5 protects the right to liberty. DoLS make that protection real.
Together, they ensure that when care limits freedom, it does so with law, fairness and oversight.
Every DoLS order, every deprivation of liberty order and every application for DoLS exists to answer one question: is this restriction necessary and lawful?
That’s how care remains compassionate and accountable.
If you need advice about DoLS, deprivation of liberty orders or Article 5 rights, Welford Solicitors can help.
Our solicitors specialise in Mental Capacity and Court of Protection cases offering practical, professional guidance to protect your rights or those of someone you care for.