Safeguarding Freedom? Liberty Protection Safeguards, Social Justice and the Rule of Law

The issue of when and how disabled people can be lawfully deprived of their liberty is a major contemporary challenge for mental capacity law. People who lack capacity to consent to treatment that deprives them of their liberty must have access to safeguards to protect their rights under Article 5 ECHR. The current Deprivation of Liberty Safeguards are widely considered to be unfit for purpose, and a replacement scheme, the ‘Liberty Protection Safeguards’ (LPS) were proposed by the Law Commission of England and Wales in 2017. These safeguards were legislated for in 2018/19 in the Mental Capacity (Amendment) Act and are expected to be implemented in 2022. At the time the reforms were being debated in Parliament, multiple stakeholders expressed serious reservations about the proposals, some going so far as to claim that they are not ‘good law’. In this paper, I evaluate to what extent the LPS is (or has the potential to be) ‘good law’, drawing on two contrasting conceptual frameworks to guide that analysis: Bingham’s (2007) sub-principles of the rule of law; and the capabilities approach developed by Sen and Nussbaum (among others). I argue that despite the technical problems with the legislation that caused such concern during its passage through parliament, if the implementation process is grounded in a strong social justice conceptual frame, the LPS has the potential to be a positive legal reform.