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New analysis shows that 67% of local authorities inspected by the Care Quality Commission (CQC) were found to require improvements to their Deprivation of Liberty Safeguards (DoLS) arrangements.
The research from the Social Care Institute for Excellence’s (SCIE) also found that the most frequent issue raised in CQC inspections was failure to process deprivation of liberty requests lawfully or on time, with local authorities citing staffing shortages and rising demand as key drivers of the backlog.
DoLS is the procedure prescribed in law when it is necessary to deprive a resident or patient of their liberty who lacks the capacity to consent to their care and treatment to keep them safe from harm.
The previous government planned to replace the Deprivation of Liberty Safeguards with the Liberty Protection Safeguards (LPS), but this has stalled alongside the Mental Capacity (Amendment) Act 2019.
The Mental Capacity Act (MCA) is the legal foundation for decisions made on behalf of people who cannot decide for themselves, because of dementia, learning disability, brain injury or serious illness. It governs some of the most sensitive decisions in life: medical treatment, financial control or the need for care.
The SCIE say failure to act on long-delayed reforms to the Mental Capacity Act is contributing to preventable deaths, unlawful detentions and growing human rights concerns.
Deprivation of Liberty Safeguard requests are soaring
Requests for DoLS assessments, however, are soaring, with over 332,000 DoLS applications made in 2023/24. In practice, only 19% of these are completed within the 21-day legal requirement, with significant numbers waiting between 12 and 18 months for completion.
Further reading
- Deprivation of liberty: how to identify when it may be taking place
- What we know about the Liberty Protection Safeguards
- Mental Capacity Act and learning disabilities: new guidance from NHS England
The SCIE adds that the Mental Health Bill 2025 aims to stop adults with autism or a learning disability from being inappropriately detained under mental health law unless they also have a co-occurring mental illness.
But many of these individuals will instead be placed under the Deprivation of Liberty Safeguards system, a system already at breaking point. Without functioning MCA safeguards, these adults risk being transferred from one form of detention to another, without any legal protection or meaningful right of appeal.
The SCIE is now calling for:
- Renewed Government commitment to the Mental Capacity (Amendment) Act, with a roadmap for review and implementation
- Publication of updated Codes of Practice, which have not been revised since 2007, despite major legal developments
- Investment in workforce training, supervision and post-qualification development so professionals can confidently and lawfully apply the MCA
- Revisiting the core principles of the LPS model, enabling a more flexible, portable and person-centred approach to deprivation of liberty
- Strengthening of CQC inspections, so that failures in applying the MCA itself (not just DoLS backlog) are monitored and addressed.
Deprivation of Liberty Safeguards and human rights breaches
Kathryn Marsden OBE, Chief Executive of the Social Care Institute for Excellence (SCIE), said: “This new analysis paints a bleak picture; outdated guidance, overstretched councils, and legal uncertainty are resulting in unlawful detentions, avoidable deaths, and a system unable to meet demand.
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“Every day, people are being deprived of their liberty without legal authority, often because the system to protect them is overwhelmed or misunderstood. This creates a profound risk of human rights breaches, particularly for people with learning disabilities, autism, dementia, or long-term mental health conditions.
“The concern is that while other parts of the legal and policy framework are being modernised, such as the Mental Health Bill and potential assisted dying legislation, they are being built on a foundation that is crumbling.
“With rising demand, mounting delays and legal ambiguity, continuing inaction will only deepen injustice and increase costs, both human and financial.”
