The Deprivation of Liberty Safeguards (DoLS) regime, introduced in 2009 as an amendment to the Mental Capacity Act 2005, was designed to ensure that individuals who lack capacity to consent to their care arrangements and are under continuous supervision or control in a hospital or care home setting are lawfully deprived of their liberty, providing that the arrangements are necessary and in their best interests.
However, since the landmark Supreme Court decision in P v Cheshire West and Chester Council (2014), the threshold for what constitutes a deprivation of liberty has broadened. As a result, local authorities, and other public bodies have been overwhelmed by a surge of DoLS applications, leading to concerns that many individuals are being deprived of their liberty without the proper legal safeguards in place.
This October, the UK Supreme Court heard arguments on whether to overturn Cheshire West (2014), while the Department of Health and Social Care (DHSC) has confirmed plans to replace the DoLS with the long-delayed Liberty Protection Safeguards (‘LPS’). These developments signal the most significant turning point in mental capacity law in England and Wales in over a decade.
Background: the Cheshire West Legacy
In Cheshire West, the Supreme Court was asked to decide what constitutes a deprivation of liberty under Article 5 European Convention on Human Rights (ECHR) in the context of care arrangements for individuals who lack mental capacity to consent to the arrangements. Lady Hale, giving the leading judgment, established what is now commonly known as the ‘acid test’ for determining whether someone is deprived of their liberty. It states that a person is deprived of their liberty if they are under continuous supervision and control and are not free to leave (regardless of their compliance or the normality of their environment). Lady Hale’s statement “a gilded cage is still a cage” captured the principle underpinning of the judgment.
Whilst the decision brought much needed clarity, it also expanded the scope of cases requiring formal authorisation by way of a DoLS authorisation or court of protection Order. This resulted in a spike of thousands of applications by public bodies across England and Wales. Over time, the broad scope of Cheshire West has made the system increasingly unmanageable for public bodies. This pressure led to the Law Commission’s 2017 review, which recommended replacing DoLS with the LPS as a more proportionate model, whilst remaining complaint with Article 5 European Convention on Human Rights.
Department for Health and Social Care challenges Cheshire West at the Supreme Court
The DHSC stated the 2014 ruling in Cheshire West was ‘clearly wrong’ to adopt the ‘acid test’ for the objective element of a deprivation of liberty and ‘went far beyond’ the ECHR.
The DHSC’s submission comes in a case brought by the Attorney General for Northern Ireland and was heard between 20-22 October 2025. Here, the Attorney General asked whether Northern Ireland’s Department of Health may revise its Mental Capacity Act (Northern Ireland) 2016 Code of Practice to recognise expressed wishes and feelings as a form of valid consent, even where a person lacks mental capacity to make the relevant decision. If endorsed by the Supreme Court, the Department of Health estimate this could result in a reduction of about 25% in the 4000 people subject to the DoLS in Northern Ireland. Charities and disability rights organisations, including Mencap, Mind, and the National Autistic Society have, however, warned that narrowing the deprivation of liberty scope could erode vital protections, leaving many without access to independent scrutiny and / or safeguards and “would likely have serious consequences for the freedom, safety, and right of thousands of disabled people.”
A judgment from the Supreme Court is expected in 2026.
DHSC confirms LPS plan for 2026; what changes will it bring?
The DHSC confirmed that it will proceed with implementing the LPS. The public consultation is due to take place in 2026, seven years after Parliament passed the Mental Capacity (Amendment) Act 2019 which created the legislative framework for the LPS and not yet brought into force. According to the report, the DHSC has committed to ensuring the new system is designed to streamline and modernise authorisations for deprivation of liberty in health and social care settings.
Key features of LPS include wider coverage; the LPS will apply to people aged 16 and over, and in a range of settings, including supported living and domestic care arrangements, not just hospitals or care homes. In addition, the new system allows longer authorisation (up to three years in some cases) and fewer reassessments in some situations. Another key feature is removing the need for a specialist assessor to be involved in every case, which has attracted some concern. Approved Mental Capacity Professionals (AMCP) would still review cases where there is complexity or disagreement to ensure appropriate independent scrutiny. Much like its predecessor, the LPS will aim to continue to safeguard individuals’ rights under Article 5 ECHR, continuing to ensure that any deprivation of liberty is lawful, necessary, and proportionate to the individual.
The government’s renewed commitment to the LPS in October 2025, combined with the Supreme Court’s reconsideration of Cheshire West are crucial in further shaping the law in this evolving area.
At Stephensons, the Court of Protection team will continue to monitor the Supreme Court’s judgment and will provide further guidance once the implications for practice and policy are clarified.
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