Liberty Protection Safeguards (LPS): Status and What They Will Replace

Liberty Protection Safeguards were enacted by the Mental Capacity (Amendment) Act 2019 as a replacement for the Deprivation of Liberty Safeguards. The headline reform is to widen the scope and simplify the process:

• Wider scope — DoLS apply only to deprivations of liberty in care homes and hospitals. LPS will apply to any setting including supported living, Shared Lives placements, and a person's own home.
• Younger age range — DoLS apply only from 18. LPS will apply from 16, removing the current need for the Court of Protection to authorise deprivations of liberty for 16- and 17-year-olds.
• Different responsible body — under DoLS the local authority authorises in care homes; under LPS the responsible body (NHS hospital trust, ICB, or local authority depending on context) is responsible.
• Approved Mental Capacity Professional (AMCP) — the new specialist role that authorises in higher-risk cases (replacing the DoLS Best Interests Assessor).
• Pre-authorisation review — by an independent professional rather than the existing six-stage DoLS assessment.
• Right to seek review at the Court of Protection is preserved.

Implementation of LPS has been postponed multiple times since the 2019 Act:

• Original target: October 2020. Pushed back by the Covid-19 pandemic.
• Revised target: April 2022. Delayed again — the draft Code of Practice and implementation regulations were laid for consultation in March 2022 but not progressed.
• In April 2023 the Department of Health and Social Care announced LPS would not be implemented during the current Parliament.
• In December 2023 the previous government confirmed it would not bring LPS into force at all and would consider DoLS reform separately.
• Since the change of government in 2024, the position has been reviewed but no implementation timetable announced. The 2019 Act remains on the statute book and could be brought into force by future regulations.

Reasons cited include: the substantial cost of system implementation (estimated £200m+ per year), the additional workforce needed (especially AMCPs), uncertainty about how LPS would interact with the proposed Mental Health Act reforms, and concerns from the social-care sector about the burden on stretched local authorities.

Until LPS are brought into force, the operational law is:

• DoLS under Schedule A1 of the Mental Capacity Act 2005 — for deprivations of liberty in care homes and hospitals for people aged 18+.
• The "acid test" — set out by the Supreme Court in Cheshire West [2014] UKSC 19. A person is deprived of their liberty if they are (i) under continuous supervision and control, and (ii) not free to leave, regardless of the apparent benevolence of the arrangements or whether they object.
• Court of Protection authorisation — for deprivations of liberty outside care homes and hospitals (e.g. supported living, the person's own home, NHS continuing healthcare community placements). Applications go to the Court of Protection under sections 4A and 16 MCA 2005.
• Inherent jurisdiction of the High Court — used for 16- and 17-year-olds whose capacity questions fall outside MCA 2005 (which only applies from 16) where a deprivation of liberty may be needed.

The DoLS Code of Practice (issued 2008) and the supplementary guidance issued by the Mental Capacity Act Code of Practice are still authoritative. The draft Mental Capacity Act 2005 Code of Practice issued for LPS consultation in March 2022 has no legal force until the LPS come into operation.

Whether someone is detained under DoLS or under a Court of Protection order, the protections are similar:

• An Independent Mental Capacity Advocate (IMCA) must be instructed where a person has no family or friends to support them in DoLS proceedings.
• A Relevant Person's Representative (RPR) is appointed under DoLS to represent the person's interests.
• Section 21A appeal — anyone with standing can apply to the Court of Protection for a review of a DoLS authorisation. Legal aid is available subject to means; mental-capacity legal aid is not means-tested for s.21A challenges.
• Court of Protection has full jurisdiction to determine whether a person has capacity, whether the deprivation is in their best interests, and whether the conditions of the authorisation are appropriate.

If you are concerned about a relative or friend being deprived of their liberty without proper safeguards, contact:

• The local authority's DoLS team (for care homes and hospitals);
• The Office of the Public Guardian (for property and welfare LPAs);
• The Court of Protection directly (for community settings);
• Free legal advice from an OISC-regulated mental-capacity specialist or a solicitor with mental-capacity legal aid contract.