After years of delay, ambiguity, and what many in the sector interpreted as quiet shelving, the government has finally announced a consultation on the implementation of the Liberty Protection Safeguards (LPS) - set to replace the Deprivation of Liberty Safeguards (DoLS) in the first half of 2026. The announcement, tucked into a Saturday morning press release from the Department of Health and Social Care, marks a significant shift in tone from earlier ministerial statements.
For those of us who’ve been watching this space closely, it’s quite the turnaround. Just a few months ago, the minister’s language around LPS was non-committal - “under review,” they said. Now, we’re told that a full consultation is coming in 2026 – some seven years after legislation to enact the LPS was passed. It will consult on introducing the LPS alongside a much-needed update to the Mental Capacity Act 2005 Code of Practice. The consultation will be jointly run by DHSC and the Ministry of Justice, with the aim of streamlining the safeguarding process and reducing the backlog of over 123,000 DoLS cases.
But why now?
It’s hard to ignore the timing. The announcement landed just ahead of the Supreme Court hearing on the Attorney General of Northern Ireland’s (AGNI) Reference - a case that could reshape how we understand deprivation of liberty. The case is being heard this week - 20-22 October 2025.
As a reminder, the Supreme Court’s decision in Cheshire West established that the objective component of a deprivation of liberty involves a person being under continuous supervision and control, and not free to leave their place of confinement. Regarding the subjective element - consent - the Court held that Article 5 of the European Convention on Human Rights (ECHR) applies to persons who lack the mental capacity to consent to their confinement. This remains the case even if the person appears content with the arrangements for their care and treatment.
The AGNI is calling for the Supreme Court to depart from Cheshire West by widening the grounds by which a person can validly consent to their confinement. Under Cheshire West, a person must have capacity to consent under the Mental Capacity Act 2005, for this to be valid.
AGNI’s proposal concerns the extent to which a person who lacks capacity can ‘validly consent’ to an objective confinement through expressions of their wishes and feelings – even though they lack capacity.
DHSC call on Supreme Court to depart from Cheshire West ruling
The DHSC say in its written case that the 2014 Supreme Court ruling, known as Cheshire West, was ‘clearly wrong’ to adopt the ‘acid test’ for the objective element of a deprivation of liberty and ‘went far beyond’ the European Convention on Human Rights (ECHR). It argues that the ‘acid test’ was not consistent with ECHR rulings before and since 2014 and should be departed from.
The widening of the definition of a DoL following the 2014 Supreme Court ruling, led to an increase in DoLS cases, creating huge backlogs and leaving many thousands of people unlawfully deprived of their liberty.
The DHSC intervention in the Northern Ireland case has been criticised by various charities, including Mencap, Mind and the National Autistic Society as they believe that Cheshire West was correctly decided so argue that departing from Cheshire West risks removing safeguards from disabled people.
In its submissions, the DHSC contends that where there's no evidence of coercion, and the person - despite lacking mental capacity - doesn't actively oppose the care arrangements, such circumstances shouldn't be classified as a deprivation of liberty.
Comment
Alongside the planned LPS consultation, the government will need to consult and redraft the Mental Capacity Act Code of Practice and the LPS framework. The current code will need to be updated with current changes in law and practice, organisational structures and terminology. Readers will recall that the government consulted back in 2022, but those findings were never published.
In terms of timing, the Supreme Court’s decision on the Northern Ireland Reference case could take months for the judgment to be published. It’s likely that the government will wait for clarity before launching the consultation in the first half of 2026.
In the meantime, those working with DoLS must continue navigating a system widely acknowledged as complex, bureaucratic, and under-resourced. The hope is that LPS will offer a more proportionate, person-centred approach - one that respects autonomy while ensuring safeguards are in place where needed. And one that provides better support for families, carers and health professionals.
If you'd like to discuss any of the issues raised here, do contact Neil Ward or Jill Mason.
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