Delays to mental capacity reform ‘contributing to preventable deaths’

The system designed to protect the rights of people who lack mental capacity is “buckling under pressure,” according to new analysis by SCIE, which warns of unlawful detentions, growing backlogs, and human rights risks as reforms to the Mental Capacity Act (MCA) remain frozen.

The MCA governs decisions for people unable to make them independently, often because of dementia, learning disabilities, brain injuries, or serious illness. It sets out the framework for choices about medical treatment, financial control, and care arrangements, and determines when someone can be lawfully deprived of their liberty in hospitals or care homes.

That framework depends on the Deprivation of Liberty Safeguards (DoLS), but these safeguards are now overwhelmed by demand.

When DoLS were introduced in 2009, the government forecast around 21,000 applications a year. But in 2023/24, there were 332,000 requests—a fifteenfold increase.
SCIE’s analysis of Care Quality Commission (CQC) inspections up to August 2025 shows:
- 67% of local authorities inspected were failing to meet DoLS requirements
- The most frequent failing was not processing requests on time or lawfully
- Local authorities cited staff shortages and rising demand as the main drivers of the backlog

Despite a 21-day legal target for completing assessments, only 19% are processed in time. Thousands of people wait 12 to 18 months, effectively living in legal limbo.

Frontline professionals are reporting that delays are leaving vulnerable people without proper safeguards, undermining trust between families, care providers, and local authorities.

The government introduced the Mental Capacity (Amendment) Act 2019, which aimed to replace DoLS with a streamlined system called the Liberty Protection Safeguards (LPS). However, implementation was paused in 2020 and has yet to restart.

Kathryn Marsden OBE, SCIE’s Chief Executive, warned the analysis “paints a bleak picture; outdated guidance, overstretched councils, and legal uncertainty are resulting in unlawful detentions, avoidable deaths, and a system unable to meet demand.”

“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.”

SCIE’s findings land at a critical moment, as other reforms risk compounding pressure on an already overstretched system with the Mental Health Bill 2025 preventing many autistic people and those with learning disabilities from being detained under mental health legislation unless they also have a co-occurring mental illness. Many of these individuals will instead come under the DoLS framework which is already failing to cope with current demand.

Additionally, the proposed Terminally Ill Adults (End of Life) Bill relies on robust capacity assessments for those seeking assisted dying. Without updated guidance, the MCA cannot provide a safe or consistent basis for such life-altering decisions.

SCIE is calling on the government to restart Mental Capacity Act reforms with a clear roadmap for LPS implementation and update the MCA Codes of Practice, which have been untouched since 2007, despite huge legal changes.

“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,” Marsden added.

“The Mental Capacity Act is the bedrock of these reforms. If that foundation is not functioning, then nothing built on it will be stable.

“Reform cannot wait for the long legislative cycles of government. While the full implementation of LPS may still be some way off, urgent action is needed to stabilise and improve the current system.

“With rising demand, mounting delays and legal ambiguity, continuing inaction will only deepen injustice and increase costs, both human and financial.”