Upcoming Consultation on Liberty Protection Safeguards

The Department of Health and Social Care (DHSC) has announced it will be launching a consultation on the new Liberty Protection Safeguards (LPS) jointly with the Ministry of Justice.

This follows the Mental Capacity (Amendment) Act 2019 which set out the LPS scheme to replace the current Deprivation of Liberty Safeguards (DoLS) system. The implementation of the LPS was delayed by the previous Government, but this step to consult shows a renewed commitment from the current Government to implement the LPS.

The proposed LPS scheme

The LPS is expected to bring major changes to safeguarding and protections that should benefit vulnerable people lacking the mental capacity to make their own decisions about their care.

The current DoLS system is outdated and puts pressure on the social care system, so LPS is intended to streamline the authorisation process for those individuals deprived of their liberty whilst allowing carers, social workers, psychologists, and families to provide better care for them.

Cheshire West

In 2014, the Supreme Court’s Cheshire West ruling broadened the definition of what it means to be ‘deprived of liberty’, resulting in a significant rise in DoLS referrals; over 300,000 more between 2013/14 and 2023/24 creating a backlog of 125,000 cases. This has naturally placed increasing pressure on care providers, local authorities, and health services.

The UK Government was granted permission to intervene in the challenge to this case in the Supreme Court last week, asking the Supreme Court to overturn its original ruling. The DHSC has highlighted the current strain on providers and whether a person’s ‘wishes and feelings’ should be considered when determining deprivation of liberty. Charities Mencap, Mind and the National Autistic Society have intervened against overturning the ruling, arguing this ‘could impact the safeguarding of hundreds of thousands of people’. This decision will have a UK-wide impact.

What does this mean for care providers, local authorities and health services?

• Changes to the legal definition could directly affect how care providers assess and manage deprivation of liberty in practice.
• In depth reviews of internal policies and procedures will need to be carried out and preparation to adapt to the changes in legislation and guidance.
• A revised framework could reduce administrative burdens while ensuring appropriate safeguards for individuals lacking capacity.  At this point there is no detail around this, but this is clearly the intention.

Next Steps

This consultation is due to launch in early 2026, seeking the views of carers and practitioners (including social workers) and families. The feedback will contribute to the development of the final Code of Practice for the Mental Capacity Act (2005), which will be presented to Parliament. Given the implication of this reform, it will be imperative that as many interested parties respond to the consultation as possible.

We will provide further updates once the consultation launches. If you have any queries in the meantime, please contact Charlotte Greatorex.