Liberty Protection Safeguards: 2026 consultation announced and Northern Ireland Cheshire West challenge

On 18 October 2025, the government announced that it will undertake a consultation on the implementation of the Liberty Protection Safeguards (LPS) in the first half of 2026.

The LPS was developed as part of the Mental Capacity (Amendment) Act 2019 and was intended to replace the Deprivation of Liberty Safeguards (DoLS) in 2020. However, their implementation was postponed multiple times and in April 2023, the then Conservative government announced that they would be delayed “beyond the life of this Parliament”. They have never therefore been brought into force. 

The consultation will seek the views of those who will be affected by LPS, such as families, carers and practitioners, including social workers, nurses, psychologists, and occupational therapists. It will be jointly run by the Department of Health and Social Care and the Ministry of Justice. The responses from this consultation will be used to inform a revised Mental Capacity Act Code of Practice, which has not been updated since it was first introduced in 2007, despite significant legal developments in this area.

What is wrong with DoLS?

The current DoLS system has faced criticism for many years for being overly bureaucratic and complex. It also has limitations in that it only applies to those over 18 and who are in a care home or hospital. Additionally, there is poor understanding and application of the law relating to DoLS by professionals, as highlighted in CQC’s recent report on 'The state of health care and adult social care in England 2024/25'. There are significant backlogs in the current system, meaning many people face long waits for DoLS authorisations, far beyond the statutory timeframe of 21-days. This poses a significant risk of people being unlawfully deprived of their liberty whilst awaiting an authorisation. Further, a DoLS authorisation only lasts a maximum of one year, meaning those in long-term care home placements have to undergo the authorisation process annually.

How LPS could streamline the authorisation process

We have outlined the LPS system in previous articles, such as 'Liberty Protection Safeguards: What are they and will they ever happen?' from March 2022. It is unclear at this stage whether the LPS will remain as currently drafted. It seems likely that some changes will be made to the framework following the results of the consultation

Northern Ireland Reference case

The Labour government has said very little about LPS since coming into power in July 2023. Its renewed engagement with LPS is clearly linked to Northern Ireland’s recent challenge to the Supreme Court’s judgment in Cheshire West regarding the ‘acid test’ and what is considered a ‘deprivation of liberty’. The UK government has been granted permission by the Supreme Court to intervene in this case.

The Supreme Court has been asked to consider whether the Northern Ireland Minister of Health can lawfully revise the DoLS Code of Practice, issued in Northern Ireland under the Mental Capacity Act (Northern Ireland) 2016. The revisions would allow individuals aged 16 and over, who lack decision-making capacity, to be considered as consenting to their confinement through expressing positive wishes and feelings. This would mean their circumstances do not fall within the scope of Article 5 of the European Convention on Human Rights (ECHR) and that they are not being deprived of their liberty. 

However, this position is at odds with the Supreme Court ruling in Cheshire West, where it was held that those lacking capacity to consent to their care arrangements cannot give valid consent to their confinement and will therefore be deprived of their liberty if they are confined for more than a negligible period and their confinement is imputable to the state – even if they are content with their confinement and show no desire to leave. The Attorney General for Northern Ireland is therefore seeking clarity on whether the Minister can exercise his functions under the MCA (Northern Ireland) 2016 so as to revise the DoLS Code of Practice as outlined above, or whether the Minister is precluded from doing so by the Cheshire West judgment.

The Supreme Court will therefore be considering what constitutes ‘valid consent’ for the purposes of Article 5 ECHR, and whether it equates to having the relevant mental capacity to do so, or if it has a wider interpretation. The Court is also being asked to consider to what extent, if any, the decision of the Supreme Court in Cheshire West will need to be revisited.

Wider implications

The decision potentially has very considerable practical implications across the United Kingdom. If the proposed definition of valid consent is adopted, it is estimated that the number of those considered to require a DoLS authorisation in Northern Ireland would be reduced by 25%. In England and Wales, it is estimated that DoLS applications would be reduced from 350,000 per year to 250,000. It would also reduce the number of applications required for judicial authorisation of deprivation of liberty in other contexts from (around) 60,000 to (around) 45,000. 

In terms of timing, the Supreme Court’s judgment on the Northern Ireland Reference case could take months to be published. It is likely that the government will wait for clarity before launching the consultation in the first half of 2026.

Summary

In the meantime, those working with DoLS must continue navigating the imperfect system as it currently stands. Whilst the consultation represents a significant step forward, the timeline for LPS implementation remains uncertain, particularly given the pending Supreme Court decision in the Northern Ireland Reference case. Browne Jacobson will keep you updated on the consultation as it is announced and progresses, and will continue to monitor developments in this area.