Liberty Safeguard Protections Are Back – Will It Fix a Broken System or Break Rights?

20 October 2025, Daisy Long, RITES Committee CEO, DCC-i

In this guest blog, Daisy Long an experienced social worker and member of the RITES Committee, reflects on the current Supreme Court case considering the Cheshire West principles alongside the Government’s unexpected weekend announcement about the Liberty Protection Safeguards (LPS). Article 5 of the Human Rights Act protects everyone’s right to liberty. In 2014 the landmark Cheshire West judgment confirmed disabled people’s rights are the same as anyone else, and any restrictions must be in line with human rights. The oft-quoted phrase a gilded cage is still a cage was coined by the court. However, this case and the laws, policies and practices that followed are now at the heart of a new case at the Supreme Court this week, along with the new LPS system announced. Daisy explores the case, the LPS announcement and what it means, highlighting why human rights remain essential in everyday practice.

The government says it will implement Liberty Protection Safeguards (LPS) to replace Deprivation of Liberty Safeguards (DoLS), alongside a consultation on regulations and a refreshed Mental Capacity Act (MCA) Code in early 2026. Although ministers have stated the Mental Health Bill won’t formally address the interface between mental health and capacity law, some tweaks have already emerged, and more are likely, to quietly pave the way.

So, what’s changed today?

The announcement, released quietly on a Saturday, hints at the sensitive and complex policy terrain it sits within. At the same time, the UK Supreme Court (20–22 Oct) will hear a Northern Ireland reference that could add a subjective “wishes and feelings” element to the legal test for deprivation of liberty. That ruling will determine whether LPS becomes a streamlined version of today’s large safeguard system or a smaller regime with fewer formal protections. All this lands in a sector facing serious workforce pressures and grappling with overlapping reforms across health, care, and justice.

Why the urgency? DoLS is being held together by duct tape!

After Cheshire West (2014), demand exploded. In 2023/24 there were 332,455 DoLS applications, with a backlog of 123,790 and only 19% completed within the 21‑day legal timeframe. Inspectors and analysts have repeatedly flagged systemic delays and unlawful deprivations arising from overload.

The workforce reality LPS will land in

The announcement, released quietly on a Saturday, hints at the sensitive and complex policy terrain it sits within. At the same time, the UK Supreme Court (20–22 Oct) will hear a Northern Ireland reference that could add a subjective “wishes and feelings” element to the legal test for deprivation of liberty. That ruling will determine whether LPS becomes a streamlined version of today’s large safeguard system or a smaller regime with fewer formal protections. All this lands in a sector facing serious workforce pressures and grappling with overlapping reforms across health, care, and justice.

The bottom line? whether LPS ends up big or small, capacity and capability will decide if it works.

DoLS vs LPS at a glance (text version)

	DoLS	LPS
Scope	Adults 18+ in care homes and hospitals	People 16+ in any setting (e.g., supported living, own home)
Assessments	Six assessments	Three assessments
Duration	Max 12 months, then fresh authorisation	12 months initially; renewals up to 3 years
Consultation	Person and those interested in welfare should be consulted where possible	Person and those interested in welfare must be consulted
Who authorises	Local authorities	Local authorities, NHS trusts and ICBs LHB in Wales.

Reflects the 2019 LPS framework & 2022 draft Code; final details depend on the 2026 consultation and any Supreme Court ruling.

The Supreme Court wildcard (20–22 Oct 2025)

The UK Supreme Court will hear a Northern Ireland reference asking whether the NI DoLS Code can treat a person’s wishes and feelings as effective consent to confinement—even where they lack capacity - so that the right to liberty safeguards in Article 5 of our Human Rights Act (and ECHR) don’t bite. The UK government has intervened, calling the current Cheshire West “acid test” “clearly wrong” in scope; disability charities (Mencap, Mind, NAS) argue narrowing would remove vital protections from thousands.

What would adding a subjective element really mean?

Imagine this: a person in a care home, under constant supervision; doors locked; meds managed by staff. Under today’s law, that’s a deprivation of liberty - because the test is objective – it applies to us all equally: continuous supervision and control, not free to leave, and lacks capacity. It doesn’t matter if they smile when you visit. It doesn’t matter if they never complain. Liberty is too important to depend on mood or manners.

Now picture the same person under a rule where “wishes and feelings” count as consent. They seem content, so the safeguards switch off. No independent review. No advocate. No regular authorisation – no checks and balances. They are deeply unhappy but are unable to articulate it, or worse, no one is paying attention. While on paper, the backlog shrinks, in reality nothing changes - except the label (or is that the shoes – 90’s throwback reference there for you).

That’s the danger: compliance becomes consent. The quietest voices disappear first - people with communication barriers, fear, or learned helplessness. Oversight evaporates because authorisations no longer trigger advocates or reviews. What counts as “happy” becomes a postcode lottery. It can look person‑centred. It isn’t.

Rights aren’t about appearances; they’re about principles.

So, what’s changed today?

The announcement, released quietly on a Saturday, hints at the sensitive and complex policy terrain it sits within. At the same time, the UK Supreme Court (20–22 Oct) will hear a Northern Ireland reference that could add a subjective “wishes and feelings” element to the legal test for deprivation of liberty. That ruling will determine whether LPS becomes a streamlined version of today’s large safeguard system or a smaller regime with fewer formal protections. All this lands in a sector facing serious workforce pressures and grappling with overlapping reforms across health, care, and justice.

Two futures for LPS?

If Cheshire West holds (objective acid test stays)

LPS = streamlining, not shrinkage. Fewer duplicate assessments; longer renewals; clearer alignment with MCA/Care Act processes, but caseloads remain high.
Backlogs persist without resources. Efficiency helps, but workforce & funding still drive throughput and lawfulness.
Rights stay strong. Advocacy, reviews and challenge routes remain for most in restrictive settings.

If Cheshire West narrows via a subjective element

Fewer authorisations. People who appear “content” could fall outside Article 5, shrinking LPS to a more targeted regime.
Admin relief, rights risk. Backlogs drop, but so does independent oversight - especially for the quietly compliant.
Legal uncertainty. Expect appeals and uneven practice while new guidance beds in.

Why this matters: the human rights ripple effect

Changes to the legal frameworks around deprivation of liberty aren’t just technical—they shape the everyday lives of thousands of people who rely on care and support. Whether it’s the shift from DoLS to LPS, the Mental Health Bill’s quiet recalibrations, or the Supreme Court’s upcoming ruling, each decision sends ripples through how rights are understood, upheld, and balanced.

These reforms affect how we listen to people’s wishes, how we protect their freedoms, and how we navigate the tension between safety and autonomy. These changes won’t just affect policy - they’ll ripple through frontline practice, training, legal interpretation, and public trust.

In a sector already stretched thin, getting this right means embedding dignity, voice, and justice into the heart of care. At stake is how we uphold the rights of people least able to object, and whether safeguards remain robust in a system under pressure.

Here’s how the ripple effect plays out in practice:

1) Practice on the frontline

Risk of complacency: If “happy compliance” equals consent, staff may stop probing necessity and proportionality.
Documentation gaps: Without formal authorisations, weaker records on capacity, best interests and less‑restrictive options.
Safeguarding blind spots: People who can’t object risk being overlooked.

2) Training and culture

New complexity: Teams must learn when “wishes & feelings” are relevant, and when they cannot substitute for capacity.
Bias risk: One assessor’s “content” can be another’s masked distress; training must tackle unconscious bias and communication support.
Cultural competence: Expressions of assent differ across cultures; misreadings can become rights breaches.

3) The courts

Litigation profile changes: Fewer routine authorisations may mean more disputes over whether Article 5 applies at all.
Strasbourg exposure: If domestic law diverges from ECHR principles, expect escalations, prolonging uncertainty for people and practitioners.

4) The system and public trust

Administrative relief vs accountability: Backlogs shrink, but so does independent oversight.
Human rights dilution: Article 5 is there to protect those least able to object. Dilution signals that liberty is conditional on behaviour, not universal.
Confidence risk: Families and advocates are less likely to trust a system that fixes the numbers but weakens the safeguards.

In this guest blog, Daisy Long an experienced social worker and member of the RITES Committee, reflects on the current Supreme Court case considering the Cheshire West principles alongside the Government’s unexpected weekend announcement about the Liberty Protection Safeguards (LPS). Article 5 of the Human Rights Act protects everyone’s right to liberty. In 2014 the landmark Cheshire West judgment confirmed disabled people’s rights are the same as anyone else, and any restrictions must be in line with human rights. The oft-quoted phrase a gilded cage is still a cage was coined by the court. However, this case and the laws, policies and practices that followed are now at the heart of a new case at the Supreme Court this week, along with the new LPS system announced. Daisy explores the case, the LPS announcement and what it means, highlighting why human rights remain essential in everyday practice.

What you can do now (practical steps for leaders & practitioners)

Scenario‑map your cohort
Identify who stays in scope if Cheshire West holds vs who might drop out if “wishes & feelings” count as consent. Prepare communication and risk‑mitigation plans for both outcomes.
Double‑down on MCA fundamentals
Refresh capacity assessments, best‑interests’ decisions, consideration of less‑restrictive options, and consultation records - your defensible core in either scenario.
Skill‑up for LPS
Clarify Responsible Body pathways (LA/NHS), AMCP thresholds, renewal cycles and the interface with Care Act processes. Build quick‑reference playbooks for hospitals and community providers.
Plan for workforce reality
Ring‑fence time for assessments; model authorisation peaks; reduce agency dependence where possible. Track morale and retention hot‑spots—especially in domiciliary and supported living.
Get your evidence ready for 2026
Capture what’s working under DoLS, where LPS can simplify, and what funding/training you need. Sector input will shape the Code - and, ultimately, people’s rights.

The transition to LPS, the evolving Mental Health Bill, and the Supreme Court’s upcoming decision are more than legal housekeeping - they represent a shift in how liberty is defined, protected, and experienced. The ripple effects will be felt across practice, training, litigation, and public confidence.

For leaders and practitioners, this is a moment to act: to strengthen safeguards, prepare for change, and ensure that human rights remain at the centre of care. The choices made now will shape the landscape for years to come.

Liberty Safeguard Protections Are Back – Will It Fix a Broken System or Break Rights?

Get our newsletter