It has long been recognised that the Deprivation of Liberty Safeguards (DoLS) are not 'fit for purpose' and, after a lengthy review process, the law introducing the Liberty Protection Safeguards was passed in 2019 (The Mental Capacity Amendment Act 2019). There was then a long period of uncertainty as to when the LPS would be implemented, with health and social care providers planning for their implementation, including recruiting staff to lead on the process. After a number of 'false starts', came an announcement in April 2023, that LPS would not be progressed during that Parliament. Following the change in government in 2024, the fate of the LPS has remained unclear, with many anticipating that it would never be implemented.
However, it appears that there is finally some movement, with the announcement from the government on 18 October 2025 that a consultation is being launched on the LPS and a commitment to the finalising of a revised Code of Practice.
Where are we now?
Unfortunately, having become accustomed to the inadequacy of DoLS, we have also become accustomed to unlawful deprivations of liberty, which in some circumstances seem to have become almost routine, with (based on the latest published figures, new figures to be released in March 2026) still only 19% of DoLS authorisations being obtained within the 21 day period allowed for a standard authorisation.
In addition to the delays in authorising deprivations of liberty, the position for those deprivations that DoLS do not apply to (where the person is under 18 or in a community placement that is not a care home) has continued to be increasingly problematic, with substantial delays in obtaining authorisations, or authorisations not being sought at all, leading to potential delays in discharge from hospital, causing considerable concern for care providers and lack of a 'safety net' for those deprived of their liberty without any legal review or safeguards.
Government's announcement
The government's recent announcement states that the consultation on the LPS will be launched in the first half of 2026, and that responses will be taken into account in finalising a revised Mental Capacity Act (MCA) Code of Practice to be laid before Parliament.
The Ministerial statement refers to 'fixing a broken system by hearing directly from those with lived experience and their families'.
The MCA Amendment Act has, of course, already been passed. It now remains to be seen to what degree the 2019 provisions will now be implemented, and if so when, and to what degree further amendments will now be required, not least, to reflect the changes since the provisions were passed (including recognition of the ICBs).
The press release example focuses on the current 'repetitive' and 'distressing' assessment process, noting that the LPS will allow for reliance on existing assessments and for them to last longer than a year.
The government announcement also references the current Northern Ireland challenge to the 'acid test' and definition of a deprivation of liberty set out in 2014 in the 'Cheshire West' case being heard by the Supreme Court, noting that any ruling will have UK-wide impact and require a 'UK-wide solution'.
What next?
We will have to wait for the outcome of the Northern Ireland deprivation of liberty challenge, for details of the LPS consultation, and for clarity as to what may be implemented and when. In the meantime, however, it will be important for providers to remain focused on ensuring they are getting the 'MCA basics' right, with clear, robust capacity assessments and best interests decisions and a sound understanding and application of the interface between the MCA and the Mental Health Act (MHA). DoLS Supervisory Bodies will need to continue to work at streamlining processes and reducing backlogs.
Mental health service providers will also be busy with the proposed changes to the MHA set out in the Mental Health Bill, currently progressing through Parliament and will need to factor potential LPS implementation and MCA Code revision into their strategy plans and timetables.
How we can help
Our national team of mental health specialists has extensive experience in advising health and social care providers and commissioners in relation to all aspects of the MCA, DoLS and the MHA and Mental Health Bill.
We can assist organisations in developing a plan to address their current issues, including development of bespoke training and strategy plans and assistance with audit and policy/process review.
