Liberty Protection Safeguards uncommenced seven years on, amid a reopened legal test

The Mental Capacity (Amendment) Act 2019 created the Liberty Protection Safeguards to replace DoLS and has never been commenced. The DoLS backlog is reported at around 124,000 people, with over 332,000 applications in 2023-24 against an original forecast of 21,000 a year. DHSC announced in October 2025 a consultation on the LPS in the first half of 2026, and a Supreme Court judgment of 2 June 2026 reportedly overruled the Cheshire West acid test, changing the scope of deprivation of liberty and forcing a fresh policy decision. SCIE describes reform as stalled while the system unravels.

Hundreds of thousands of people lack timely legal authorisation of their confinement, a continuing Article 5 exposure, while councils hold statutory duties they cannot meet. The Supreme Court ruling opens a rare window to redesign the framework before case law re-hardens.

A definitive government instrument: commencement of a revised LPS following the 2026 consultation, or replacement legislation built on the new Supreme Court test, with a funded backlog-clearance programme. DHSC and MoJ own it, the Law Commission's original scheme informs it, and Casey phase 1 could force the decision.

// State-led: Instrument: LPS commencement or replacement legislation on the new Supreme Court test, plus funded backlog clearance.

The June 2026 ruling and the 2026 consultation reopen the framework over a 124,000-person backlog and continuing Article 5 exposure, a window that closes as case law re-hardens.