A resurrection of the Liberty Protection Safeguards?

The Government has recently announced that it will launch a consultation on the Liberty Protection Safeguards (the “LPS”) in the first half of 2026.

This is a significant development as prior to this, the LPS had appeared to be stalled, with the previous Government delaying its implementation and the current Government expressing little enthusiasm for reviewing that position. 

Although we await further detail on the exact date of the consultation, the Government has said that the responses from the consultation will be used to inform a final Mental Capacity Act (2005) Code of Practice (“MCA CoP”) which will be laid before Parliament. 

The consultation will be jointly run by the Department of Health and Social Care and the Ministry of Justice and will seek “the views of those affected such as families, carers and practitioners including social workers, nurses, psychologists and occupational therapists.”

What is the LPS?

The LPS is a framework by which a person’s deprivation of liberty (“DoL”) can be authorised.

The LPS was developed several years ago to replace the current Deprivation of Liberty Safeguards (“DoLS”), which has long been criticised and which the current Government describes as “bureaucratic and complex, leading to poor understanding and application of the law by professionals, unacceptable distress for families and a backlog of 123,790 individuals, putting pressure on the social care system.”

The LPS is intended to streamline the process for authorising a DoL and reduce the current DoLS backlogs. It is proposed that an authorisation under LPS can be renewed, in the first instance for one year and thereafter up to 3 years, whereas under DoLS, an authorisation can only last for 12 months at most, after which a new application is required. LPS is intended to also provide for existing assessments relating to a person to be re-used in certain situations. 

LPS is also intended to have a wider scope than DoLS as under LPS, arrangements amounting to a DoL in any setting can be authorised using the process, not just those in care homes and hospitals (which is the current situation under DoLS). The LPS would also provide increased flexibility as an authorisation can cover more than one environment and travel with the person as they move between settings. The LPS also applies to 16 and 17 year olds whereas currently an authorisation for a DoL for a 16 or 17 year old must be sought from the Court.

The Mental Capacity Act (2005) Code of Practice

The last Government consulted on proposed changes to the MCA CoP between March and July 2022, but no further action was taken until the announcement of this new consultation. 

As well as the new consultation being important, the revised MCA CoP is also likely to be heavily influenced by the judgment of the Supreme Court in UKSC/2025/0042, an Attorney General Reference made by Northern Ireland. This case, which is currently being considered by the Supreme Court, amounts to a challenge from Northern Ireland regarding the definition of a derivation of liberty and in particular, whether a person who is agreeing to their restrictions is being deprived of their liberty. It could have great implications for the number of people requiring a deprivation of liberty authorisation. 

The UK Government has intervened in this case and is arguing that the “acid test” for a deprivation of liberty set down in Cheshire West is wrong in law and that, in considering whether someone is being objectively deprived of their liberty, consideration must be given to whether they are objecting to the restrictions. It remains to be seen what the Supreme Court decides, but whatever the judgment, the MCA CoP is likely to need to be revised to take it into account. The timeline for the revised MCA CoP is therefore likely to be dependant not only on the Government’s consultation but on how long the Supreme Court takes to determine this case. 

We will continue to publish updates considering the LPS (as part of our Mental Capacity, Mental Health and Court of Protection updates) and how it impacts on different types of organisation. If you would like to sign up to our updates please click here.