Government consults on long-awaited DoLS replacement Liberty Protection Safeguards

The consultation, expected to launch in the first half of next year, will seek views from families, carers and professionals including social workers, nurses, psychologists and occupational therapists. It will be jointly led by the Department of Health and Social Care (DHSC) and the Ministry of Justice.

The move comes as longstanding concerns continue about the complexity and backlog of the current DoLS framework. According to the DHSC, there are more than 120,000 unprocessed applications, leaving many people without the legal protections intended to safeguard their rights.

The DoLS system, introduced under the Mental Capacity Act 2005, is designed to ensure that any restrictions on a person’s liberty in care settings are lawful, proportionate and in their best interests. However, since the 2014 Supreme Court ruling in Cheshire West broadened the definition of what counts as a deprivation of liberty, applications have risen sharply — from around 13,000 in 2013–14 to more than 300,000 in 2023–24.

Local authorities, which are responsible for processing most DoLS applications, have repeatedly warned that the framework is too resource-intensive and bureaucratic, leading to delays and inconsistent application across England and Wales.

Liberty Protection Safeguards as a replacement for the DoLS system has been a long-term ambition of successive governments since the Cheshire West ruling broadened to definition. Despite the passing of the Mental Capacity (Amendment) Act 2019, multiple delays have hit the reforms with Minister for Care Stephen Kinnock saying as recently as June this year that he is ‘not convinced’ about replacing DoLS with LPS.

The government now says the proposed LPS would streamline processes by allowing existing assessments to be reused and enabling longer authorisation periods for people whose conditions are unlikely to change. Officials argue this could reduce unnecessary reassessments and distress for individuals and families.

“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,” Minister of State for Care Stephen Kinnock said.

“There is currently a shameful backlog in the system of unprocessed cases under the current system which means that people’s rights are not being protected. At the same time, we know that many people in the system and their families find these intrusive assessments distressing.

“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.”

One example cited by the DHSC involved a woman in advanced dementia who is required to undergo annual reassessments, despite being unable to communicate or understand the process — a situation the government said illustrates the need for reform.

The announcement comes as the Supreme Court prepares to consider a case from Northern Ireland that challenges the current legal definition of a deprivation of liberty under Cheshire West. The UK government has been granted permission to intervene in that case, which could have implications for safeguarding frameworks across all UK jurisdictions.

Any changes emerging from the consultation will inform a revised Mental Capacity Act Code of Practice, due to be laid before Parliament following the process. The new Code is expected to reflect changes in law, organisational structures and good practice since it was last published in 2007.

A 2022 consultation on LPS, held under the previous administration, did not lead to implementation. The government has not confirmed a timeline for any legislative changes following the new consultation.

Kathryn Marsden OBE, Chief Executive of the Social Care Institute for Excellence (SCIE), said the changes were welcome.

“Implementation has stalled for five years against a backdrop of rising demand and escalating consequences; over 332,000 Deprivation of Liberty Safeguards applications were made in 2023/24, with only 19% completed within the 21-day legal requirement - and many people waiting over a year for completion. The Government’s announcement is a vital step towards addressing the unsustainable pressures we have consistently highlighted.

“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.”