Government will replace DoLS with Liberty Protection Safeguards

The government will implement the Liberty Protection Safeguards (LPS) to replace the Deprivation of Liberty Safeguards (DoLS), it announced today.

It will consult on introducing the LPS, alongside a much updated Mental Capacity Act 2005 code of practice, in the first half of next year, seven years after legislation to enact the new system was passed.

The news marks an apparent shift in the government's position, with care minister Stephen Kinnock having said in June that he was “not entirely convinced” about introducing the LPS and said that DoLS would continue to apply until further notice.

DoLS is 'broken system'

However, today, Kinnock described DoLS as a "broken system", characterised by "intrusive assessments" that were distressing for families, and that the reform would deliver "the best protections and safeguards possible".

The change comes with the Department of Health and Social Care (DHSC) seeking to overturn the widened definition of a deprivation of liberty laid down by the Supreme Court in the 2014 Cheshire West judgment, in a case that will be heard by the same court next week.

The LPS was devised, in large part, in response to the impact of Cheshire West on the system for authorising the deprivation of liberty of people receiving health or social care services where they lack the capacity to consent to their confinement.

Currently, this is done through the DoLS, in the case of adults aged 18 or over in hospitals or care homes, or through welfare orders made by the Court of Protection for young people aged 16 or 17 or those receiving care in other settings, including their own homes.

Impact of Cheshire West ruling on case numbers

The 2014 judgment led to a huge and sustained rise in DoLS case numbers, creating huge backlogs that left many thousands of people unlawfully deprived of their liberty.

The number of DoLS applications made in England in 2023-24, 332,455, was 25 times the number received by councils a decade earlier, before the Supreme Court handed down Cheshire West. At the end of that year, there was a backlog of 123,790 cases.

The DoLS has also faced criticism for being overly bureaucratic, including because authorisations only last a maximum of a year, meaning those in long-term care home placements have to undergo the process anually.

How LPS should streamline authorisation process

The LPS is designed to streamline the system by:

• Removing the Court of Protection from the authorisation process by creating one system for all ages (16 and over) and settings.
• Embedding LPS assessments within other mainstream health and social care processes, such as those provided for by the Care Act 2014 or Social Services and Well-being (Wales) Act 2014.
• Removing the need for specialist assessors - such as best interests assessors under DoLS - to be involved in every case.
• Spreading responsibility for authorisation between councils, NHS commissioners and hospitals. Councils are the only authorising body for DoLS in England.
• Enabling initial 12-month authorisations to be renewed for a further three years.
• Allowing for greater reuse of existing assessments.

Alongside its consultation on implementing the LPS, the government will also consult on a revised Mental Capacity Act code of practice. The current code dates back to 2007 and much of it is out of date due to subsequent developments in law and practice.

Current case backlog 'shameful'

Kinnock said: "This is about fixing a broken system by hearing directly from those with lived experience and their families. 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.”