Introduction
This page contains resources on the Liberty Protection Safeguards (‘LPS’), contained in the Mental Capacity (Amendment) Act 2019. After a period of some considerable uncertainty, it appears that matters may be proceeding further in light of the Government announcement of a consultation on LPS in October 2025.
It is important to note that, even if and when matters move concretely towards commencement of the LPS, there will still be a considerable period of time before they can come fully into force. I recommend watching this video (recorded in December 2021) in the meantime; the slides are here.
Background to the LPS and its key features
The background to the LPS lies in the decision of the Supreme Court in Cheshire West: for resources related to that decision and its implications, see my dedicated resource page here. My overview paper with the background to and an outline of the LPS can be found here.
With thanks to Emma Sutton KC and Rhys Hadden, a table comparing DoLS and LPS can be found here. This table is based on one provided to the Supreme Court in the context of the Attorney General for Northern Ireland’s Reference, a case heard in October 2025 which may have significant implications for determining the scope of those whom the LPS will apply.
For a walkthrough of the LPS recorded in January 2021, see here (nb, this predates the publication of the draft consultation noted below, but remains accurate – save for the one slide with the timeline as it then stood).
Primary legislation, regulations and other statutory materials
The Act itself can be found here. The Explanatory Notes can be found here. Links to debates and other official documents produced during its passage here.
HEALTH WARNING: All the material which is set out below in this section was produced in 2022 at the point when it appeared that implementation was progressing. Insofar as they relate to England, they were published under the Conservative Government, and I do not know whether the policies that they enshrine will be carried forward by the current Labour Government if and when LPS is progressed. However, I have maintained them here with to help people to understand some of the more operational details as they have been understood.
In March 2022, the Conservative Government produced a long-awaited draft updated Code of Practice (covering both the main body of the MCA, and the LPS) for consultation. There was a detailed consultation document, together with two easy read summary booklets, one focusing on the wider MCA guidance, and one on the LPS guidance, both available on the consultation page here. For my overview of the consultation/draft, see here, and for three video FAQs arising out of the consultation process, see here.
At the same time, there is also a consultation on 6 sets of draft regulations which will underpin the new system. If and when enacted, 4 of these sets of regulations would apply in England only. The remaining 2 sets of regulations would apply to both England and Wales. The regulations (in draft) were:
- Assessment, Determinations and Pre-Authorisation Reviews (England)
- Training and Approval for Approved Mental Capacity Professionals (England)
- Independent Mental Capacity Advocates (England)
- Consequential Provisions (England & Wales)
- Commencement, Transitional and Savings Provisions (England & Wales)
- Monitoring (England)
Separately, the Welsh Government published 4 sets of regulations which would apply in Wales for consultation. These were (in draft):
- The Mental Capacity (Deprivation of Liberty: Eligibility to Carry Out Assessments, Make Determinations and Carry Out Pre-Authorisation Reviews) (Wales) Regulations 2022
- The Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (Wales) (Amendment) Regulations 2022
- The Mental Capacity (Deprivation of Liberty: Training and Criteria for Approval as an Approved Mental Capacity Professional) (Wales) Regulations 2022
- The Mental Capacity (Deprivation of Liberty: Monitoring and Reporting) (Wales) Regulations 2022
The DHSC also published a number of documents to help the sector prepare for implementation. These were (all in draft):
- impact assessment – this constituted the then-Government’s assessment of the financial impact of LPS, including the Code and regulations, as proposed for consultation. This was the third iteration of the impact assessment.
- LPS workforce and training strategy – this covered:
- workforce planning
- the learning, development and training on offer
- what different organisations and sectors could do now to begin preparing for LPS
- LPS training framework – which makes recommendations about subject areas that LPS training should cover
- LPS National Minimum Data Set – which would be used to standardise the collection and submission of notification data sent to the monitoring bodies and NHS Digital
- Equalities impact assessment – which assessed the potential equality impact of the design of LPS overall, including the Mental Capacity (Amendment) Act 2019, the LPS regulations and the Code
The DHSC published on 8 July 2022 a set of template forms, designed to be used at key points in the LPS process when information needs to be transferred from one party to another. The template forms would enable the recording of the LPS assessment information which will be required for authorisation. There were nine draft template forms:
Template 8 – referral for final authorisation nb: this is actually misnamed. What it really is is a third party referral form to identify that an LPS authorisation may be required; hence why I have put it first.
Template 1 – referral for an IMCA
Template 2 – mental capacity assessment
Template 3 – medical assessment
Template 4 – necessary and proportionate assessment
Template 5 – submission for pre-authorisation review
Template 6 – referral for an unscheduled review
Template 7 – submission for renewal Template 8 – referral for final authorisation
Template 9 – authorisation record
Welsh Government conducted its own consultation on specific aspects in Wales (which includes an interesting additional set of criteria set out in the regulations above for people to be eligible to carry out the assessments and determinations for LPS purposes). As part of this, Welsh Government published its own set of documents, including a specific children’s rights impact assessment. There wasis also a helpful set of FAQs about LPS in Wales.
DHSC materials
In 2020-2021, the DHSC published a series of newsletters, and created a dedicated LPS document collection page.
Newsletters:
Factsheets (note, however, that these pre-date the draft Code, so the draft Code gives a fuller sense of what DHSC was envisaging in relation to these areas as that that point):
1: “Liberty Protection Safeguards: what are they?” (September 2020)
2. Liberty Protection Safeguards: overview of the process (November 2020)
3. Liberty Protection Safeguards: settings and Responsible Bodies (January 2021)
4. Liberty Protection Safeguards: criteria for authorisation (June 2021)
5. Liberty Protection Safeguards: the appropriate person and Independent Mental Capacity Advocates (June 2021)
6. Liberty Protection Safeguards: the Approved Mental Capacity Professional Role (June 2021)
8. Liberty Protection Safeguards: authorisations, renewals and reviews (June 2021)
9. Liberty Protection Safeguards: the right to challenge an authorisation in court (June 2021)
10.Liberty Protection Safeguards: young people and Responsible Bodies (August 2021)
Minutes of LPS Steering Group
As part of the consultation on the Code and LPS implementation, the DHSC also published easy read versions (in draft) of the parts of the Code relating to the LPS and also the main body of the Act, both available here.
Welsh Government
Reflecting the fact, although the MCA 2005 is a subject matter which is reserved to the UK Parliament, the MC(A)A 2019 contains regulation making powers for the Welsh Ministers to implement the LPS in Wales, Welsh Government is publishing its own materials in relation to such implementation, most easily accessed through its consultation page here.
SCIE resources
SCIE has a good and expanding resources page here.
Commentary
An overview prepared for the House of Commons Library (not as an official Government document) by Judy Laing can be found here. The briefing also links out to other background materials prepared for the Library.
A good summary by Tim Spencer-Lane, who led the project at the Law Commission which led to the Bill (and to which I acted as consultant) and was then involved in the passage of the Bill itself, can be found here. Tim has also produced a summary of the draft Code as it relates to LPS here, and a helpful outline of how (in 2022) the DHSC envisaged LPS working here.
My colleague Neil Allen has set up a very useful website, LPS Law, which covers the LPS and a great deal MCA-related as well.
