Ministers finally announce progress on ‘liberty safeguards’, but also challenge vital definition

The government is set to push ahead with a long-delayed new system of safeguards that could have a significant impact on service-users who are unable to consent to restrictions placed on their liberty in health or social care settings.

There have been years of delays to the introduction of Liberty Protection Safeguards (LPS), which will replace the current Deprivation of Liberty Safeguards (DoLS) in England and Wales.

But care minister Stephen Kinnock finally announced this week that there will be a new consultation on the new LPS system “in the first half of next year”.

The announcement came as the Supreme Court this week heard a case brought by the Northern Ireland attorney general, which is examining the definition of “deprivation of liberty”.

The case challenges two 2014 rulings by the Supreme Court – one of which became known as the Cheshire West ruling – which significantly widened the definition of who would be protected by the DoLS system.

The Cheshire West ruling found that a disabled person was being deprived of their liberty if they were obliged to live in a particular place “under continuous supervision and control”, and they were not free to leave their homes or move away without permission, and they could not consent to decisions about their welfare.

It also found that such people needed “a periodic independent check on whether the arrangements made for them are in their best interests”.

But the Department of Health and Social Care has been heavily criticised for intervening in this week’s case and for asking the Supreme Court to set aside the Cheshire West ruling.

The 2014 rulings led to an increase in referrals from 13,700 in 2013-14 to 322,455 in 2023-24 and a backlog of 123,790 cases.

The rulings eventually led to the drawing up of the LPS system, based on a report by the Law Commission.

The last government had originally planned to bring in LPS in October 2020, but its implementation was repeatedly delayed by Conservative ministers.

The Department of Health and Social Care said this week that the new system would “deliver improved protection and an easier and improved system”.

It said the current DoLS system was “bureaucratic and complex” and led to “poor understanding and application of the law by professionals, unacceptable distress for families” and the lengthy backlog, which placed pressure on the social care system.

Kieran Lewis, rights and migration policy manager at National Survivor User Network (NSUN), said: “We urge the Department of Health and Social Care and the Ministry of Justice to treat their consultation on the Liberty Protection Safeguards with the care it deserves, making it genuinely accessible and actively seeking out people subject to deprivations of liberty, as well as their families and carers, to shape it.

“We also echo calls to defend the Cheshire West judgement and ensure that any changes in the law around deprivation of freedom are made in close collaboration with disabled people and their organisations.

“This is the bare minimum, considering the complete lack of trust that disabled people now have in this government, which continues to demonstrate its lack of real concern for them.”

Kinnock said the consultation was about “fixing a broken system by hearing directly from those with lived experience and their families”.

He 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.”

The responses from next year’s consultation will inform a new code of practice to the 2005 Mental Capacity Act, which will be laid before parliament.

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