Key takeaways
Government revives Liberty Protection Safeguards plans
Proposed changes aim to replace current DoLS framework.
Focus on streamlined processes and reduced delays
New system designed to improve efficiency and protect rights.
Care providers should prepare for implementation early
Training and policy updates will be essential for compliance.
The UK Government has confirmed that it will launch a fresh consultation into the Liberty Protection Safeguards (LPS) in 2026. If this is sounding familiar, it is because the expected implementation for LPS was previously scheduled for 2022, but due to the pandemic and other priorities, the LPS never materialised.
The fresh consultation delivers on calls from organisations including the Care Quality Commission, Mencap and Mind for the implementation of new framework to replace the outdated Deprivation of Liberty Safeguards (DoLS).
Why is reform needed?
The DoLS system was introduced in 2009 under the Mental Capacity Act 2005. It was designed to ensure that people who lack capacity to consent to restrictive care arrangements are properly safeguarded. However, the system has long been criticised for being bureaucratic, outdated and overstretched.
Since the 2014 Cheshire West judgment, which broadened the legal definition of a deprivation of liberty, there has been a huge increase in applications. In 2023/24, applications to deprive a person of their liberty increased to just over 330,000, an 11% increase compared with the previous year, with only 19% of standard applications completed within the statutory 21-day timeframe.
The impact is that vulnerable adults will remain without DoLS authorisation or legal protection for extended periods of time.
The Minister of State for Care, Stephen Kinnock, said:
“There is currently a shameful backlog in the system of unprocessed cases under the current system, which means that people’s rights are not being protected. At the same time, we know that many people in the system and their families find these intrusive assessments distressing.”
What do we know about the 2026 consultation?
The consultation will seek the views of those affected such as families, health and social care professionals and legal experts. The consultation will be jointly run by the Department of Health and Social Care and the Ministry of Justice.
Consenting without capacity
This also comes as the Supreme Court this week considers whether persons aged 16 and over who lack capacity to make decisions about their care and treatment can give “valid consent” to their confinement.
The question, posed by the Attorney General for Northern Ireland, challenges the landmark decision in Cheshire West. In that case, the Supreme Court established that even if an individual’s needs are met and they appear content, there is still a deprivation of liberty if they are under “continuous supervision and control and not free to leave”. The Attorney General for Northern Ireland doesn’t seek to re-define confinement, but they are asking whether individuals can consent to it nonetheless.
It is of no doubt that the judgment will act as further guidance to the consultation.
What does this mean for you?
The Government says the proposed LPS would streamline processes by allowing existing assessments to be reused and enabling longer authorisation for periods of up to 3 years for people whose conditions are unlikely to change. This could reduce unnecessary reassessments and distress for individuals and families.
The proposed LPS are also expected to address how we deal with those outside the scope of DoLS, i.e. people deprived of their liberty in the community or under the age of 18.
The Government has indicated that the responses to the 2026 consultation will be used to inform a revised Mental Capacity Act Code of Practice.
A timeline for legislative change has not been confirmed, although we can expect a lengthy process. Hill Dickinson’s specialist mental capacity and deprivation of liberty lawyers will keep you appraised of any developments.
Our credentials
Hill Dickinson LLP are the national leading experts on the Mental Capacity Act 2005 (MCA) and deprivation of liberty, with more lawyers independently ranked in directories as leading practitioners in this field than any other firm.
Our lawyers have been involved in the leading case law, including at Court of Appeal and in the Supreme Court, as well as being involved in the development of national policy, guidance and training.
