Deprivation of Liberty Safeguards: An uncertain future

It is now seven years since the Mental Capacity (Amendment) Act 2019 became law, which provided the legislative basis for the Liberty Protection Safeguards (LPS) to replace the Deprivation of Liberty Safeguards (DoLS).

In addition, four years have passed since the then-government published a consultation on the draft regulation and code of practice for implementing LPS. Yet still the DoLS are in place, as is the backlog of cases.

Indeed, there was a backlog of 123,790 Deprivation of Liberty Safeguard cases in England as of March 31, 2024, the most recent figures available. The backlog was sparked by the Cheshire West decision in 2014, which brought many more people within the scope of the legislation.

This backlog and delay in new legislation have caused significant concern within the sector about the number of people whose rights are not being upheld. For instance, the Care Quality Commission, in its State of Care report 2024/25, said: “We have raised serious concerns about the safeguards and the need for system-wide reform for a number of years…. In a system struggling to cope, many people subject to DoLS authorisations are not having their rights upheld in the way that the system intended… We remain concerned that the current system is not effectively protecting the rights of many people who use health and social care services.”

Deprivation of Liberty Safeguards not fit for purpose

Mencap’s head of policy and public affairs, Dan Scorer, adds: “It is widely agreed that the current system of DoLS is not fit for purpose, and that reform is urgently needed. We’ve seen delays in implementation and action across governments, compounded by the impact of the pandemic, and this has been frustrating.

“At the same time, we have welcomed progress in other areas – including the Mental Health Bill achieving Royal Assent, bringing in important changes to the Mental Health Act for people with a learning disability and autistic people.”

Tonina Ashby, a partner and head of the Older and Vulnerable Persons Team within the Private Client Team at HCR Law, adds that the reality on the ground is that local authorities are drowning in a backlog of Deprivation of Liberty Safeguards applications.

“The impact is that thousands of vulnerable people are being deprived of their liberty without the legal authorisation and oversight that Parliament intended,” she says. “Put simply, the current system is failing the very people it was designed to protect.

“These delays not only risk breaching Article 5 of the Human Rights Act 1998, but what many people do not appreciate is the ripple effect across the Court of Protection more broadly. Applications for permission to sell or charge properties to fund care fees, for example, require evidence that Standard Authorisations are in place. When those authorisations are awaiting approval, families are left in limbo — unable to access the funds needed to pay for care, with all the stress and worry that brings. For care providers, the cashflow implications can be significant to the very functioning of their business.”

Consultation on Deprivation of Liberty Safeguards

The Labour government has committed to revisiting the LPS and has pledged to launch a consultation on it this year, although no date has been announced for it at the time of writing.

Martin Sexton, a member of the British Association of Social Workers and former chair of BASW’s Policy, Ethics, and Human Rights Committee, noted that there are questions in the sector about why another consultation is needed and how it will differ from the 2022 consultation.

“I, along with everybody who’s working in this field, am waiting and expecting for the Department of Health and Social Care to clarify that so that people can understand where we are going now and how we are going to move forward this time, and why it is necessary to take a step back to move forward?” he says. “The Department needs to clarify that and has said it will later this year.”

Will Liberty Protection Safeguards be an improvement?

Part of the frustration with the delays is that the LPS appears to be an improvement on the DoLS. “I believe it has the right principles at its heart and provides a more flexible and manageable way of ensuring that people’s rights are identified and respected, and, if they’re being infringed, there are ways of challenging that and addressing that,” says Martin.

But he adds that the LPS are not perfect and won’t be straightforward to implement. “At the time of the first consultation, there were some significant questions about the impact assessment and had the government factored everything that was required into that,” he explains. “That will need to be revisited carefully when they come to propose a timetable for bringing in LPS.”

Tonina agrees that, on paper, the LPS look like an ambitiously streamlined replacement, and there is much to welcome in the underlying intention. “However… we are yet to see the details of how they will work in practice,” she notes. “Once they are finally announced, we anticipate inevitable teething issues as our already under-resourced local authority colleagues seek to get up to speed with an entirely new process.

“We remain hopeful that, when the LPS do arrive, the procedures will be sufficiently simplified so that they genuinely serve the purpose for which they were intended — protecting the rights and dignity of some of the most vulnerable members of our society.”

Liberty needs to be genuinely protected

Dan adds that clear, practical guidance on how the LPS will work to ensure people’s liberty is genuinely protected is needed. “We want to see a real focus in the Code on ensuring the person is genuinely at the centre, and the focus is on supporting them to live a full life, rather than the focus just being on the process,” he adds.

“A deprivation of liberty authorisation is powerful and gives permission to care for people in a restrictive way, but those restrictions must always be necessary and proportionate. It’s vital that the Code encourages a continuous drive to reduce restrictions.

“As the Government consults on the Code, it’s vital that they listen to people affected, their families and those who support them. The final Code must be shaped by their insights and expertise, and any concerns must be fully addressed, so that it is as robust as possible. There must also be a focus on effective implementation.”

Potential timescale for legislation

But even if a consultation is announced in the coming weeks, it will still be some time before any legislation makes it into practice.

“You could envisage a consultation and response period of about six to nine months, and then another year to give local authorities, health bodies, providers and people and their advocates the time to understand what the implications of the new scheme are, for training to be provided and for people to change their systems,” says Martin.

“It’s that kind of timeframe you need to make changes at this level. You need to allow everyone enough time to work out for themselves what’s needed for their circumstances and their own service. Do I need to retrain staff? Do I need additional staff? How are we going to make this work here and give everybody enough time so that whatever the go-live date is, people are ready? I appreciate that, for people who are concerned about current levels of protection, we’re talking about a significant period, which raises concerns.

“But to do something like this properly, and by properly, I mean getting everybody as ready as they can be to deliver it on the set day, it takes that kind of length of time.”

Martin sees a 2028 date for when the LPS could come in. “But it is a guess at the moment,” he adds. “We’ll wait to see when the consultation is announced; it would be good to have a roadmap with that too.”

Government response

To that end, in a statement, a Department of Health and Social Care spokesperson said: “This government is taking action to keep vulnerable people safe.

“Liberty Protection Safeguards, which we intend to consult on this year, will radically overhaul the system for safeguarding people’s rights when they are deprived of liberty for care and treatment.

“The proposals will transform the safeguarding system to ensure any deprivations of liberty are necessary, proportionate and that the process puts the experience of people and families at its heart.”

Dan Parton

Dan Parton is an experienced journalist, having written about pretty much everything and anything during the past 20 years - from movies to trucks to tech. He is former editor of Learning Disability Today.

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