New Liberty Protection Safeguards consultation launched

The Government has announced a consultation into Liberty Protection Safeguards, which will seek the views of those affected, such as families, carers and practitioners, including social workers, nurses, psychologists and occupational therapists.

Proposed Liberty Protection Safeguards aim to improve safeguarding and streamline the process for vulnerable people who lack mental capacity in circumstances that amount to a deprivation of liberty.

Currently, Deprivation of Liberty Safeguards (DoLS) are used to ensure that people who cannot consent to their care arrangements in a care home or hospital are protected if those arrangements deprive them of their liberty. However, in July 2018, the Government published a Mental Capacity (Amendment) Bill, which will see DoLS replaced by the Liberty Protection Safeguards (LPS).

Until LPS is fully implemented, the current process remains, which has been criticised for being bureaucratic and complex, leading to poor understanding and application of the law by professionals. There is also a backlog of 123,790 individuals, putting pressure on the social care system.

Liberty Protection Safeguards will allow for existing assessments to be reused, or for assessments to last for longer than one year. This will reduce the need for intrusive processes, which can be harmful or distressing for individuals and their families, and will allow for better focus on people who most need support and protection.

The consultation, which will be launched in the first half of next year, will be jointly run by the Department of Health and Social Care and the Ministry of Justice.

Minister of State for Care Stephen Kinnock said: “Safeguarding the vulnerable and protecting their rights is our absolute priority of this government – this is about fixing a broken system by hearing directly from those with lived experience and their families.

“This is about ensuring we are fully focused on the most vulnerable people in our society and their families – understanding their needs, ending the maze of referrals and paperwork, and delivering the best protections and safeguards possible.”

Mental Capacity Act and Liberty Protection Safeguards

The responses from this consultation will be used to inform a final Mental Capacity Act (2005) Code of Practice, which will be laid in Parliament.

The revised Code of Practice will incorporate changes in case law, legislation, organisational structures, terminology, and good practice since 2007, addressing critical challenges in the existing Deprivations of Liberty Safeguards framework.

The last time the Mental Capacity Act Code of Practice and Liberty Protection Safeguards were consulted on was in 2022, which did not lead to any changes.

SCIE welcomed improved safeguarding and protections for vulnerable people, stating it was a vital step towards addressing the unsustainable pressures it has consistently highlighted. It said that implementation of the Liberty Protection Safeguards has stalled for five years against a backdrop of rising demand and escalating consequences.

Over 332,000 DoLS applications were made in 2023/24, with only 19% completed within the 21-day legal requirement – and many people were waiting over a year for completion.

Kathryn Marsden OBE, Chief Executive of SCIE, added: “Every day, people are being deprived of their liberty without proper legal authority because the system designed to protect them is overwhelmed and misunderstood. This carries a profound risk of human rights breaches, particularly for people with learning disabilities, autism, dementia or long-term mental health conditions.

“We strongly welcome the consultation next year and the long-overdue revision of the Mental Capacity Act (2005) Code of Practice. But with rising demand, mounting delays and legal ambiguity, continuing inaction will only deepen injustice and increase costs – both human and financial. Reform must now move from commitment to delivery.”

Cheshire West case

A 2014 Supreme Court ruling, known as Cheshire West, established an ‘acid test’ which broadened the definition of what it means to be ‘deprived of liberty’ and led to an increase of 300,000 referrals between 2013-14 and 2023-24 – in addition to a backlog of 125,000 cases.

In August, Northern Ireland put forward a challenge to the Supreme Court about the Cheshire West ‘acid test’ and what is considered a ‘deprivation of liberty’. This is a challenge to the current Deprivation of Liberty Safeguards, with any ruling having a UK-wide impact.

The UK government has been granted permission by the Supreme Court to intervene in this case, as it recognises the issue within the current system and seeks to be part of this vital conversation, putting forward a UK-wide solution.

Charities call intervention ‘deeply troubling’

This led to charities Mencap, Mind and the National Autistic Society to issue a joint call last week, urging the Government to withdraw the expanded scope of the Department’s intervention as it places the rights of thousands of disabled people at risk – especially those who cannot speak up, challenge decisions, or seek help when things go wrong.

They say that the Supreme Court’s decision could have wide-reaching implications, potentially removing some of these important legal protections for people across the UK. The 2014 case ensures an independent person checks that such arrangements are justified, lawful, and in the person’s best interests.

The charities believe that the Department lacks standing in introducing these new arguments; has intervened late in the case, meaning there is inadequate time for the parties to respond and for the lived experience of people to be properly heard; and that the intervention significantly broadens the scope of the case, raising complex legal and human rights questions that could impact the safeguarding of hundreds of thousands of people with learning disabilities, autistic people, and those with other impairments.

They added: “The Cheshire West judgment has ensured for over a decade that when someone is in such restrictive care, they are entitled to independent scrutiny and a clear route to challenge the arrangements. This ensures the restrictions are truly in their best interests, and not just convenient for others.

“Any change that would remove those protections would mean public bodies would mark their own homework, with no outside check, and would likely have serious consequences for the freedom, safety, and rights of thousands of disabled people, putting them at risk of abuse, neglect or harm.”

Alison Bloomer

Alison Bloomer is Editor of Learning Disability Today.

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