Liberty Protection Safeguards: the right to challenge an authorisation in court
Updated 3 August 2021
Applies to England and Wales
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The Liberty Protection Safeguards (LPS) will provide protection for people aged 16 and above who are or who need to be deprived of their liberty in order to enable their care or treatment and lack the mental capacity to consent to their arrangements.
People who might have a LPS authorisation include those with dementia, autism and learning disabilities who lack the relevant capacity.
Where an LPS authorisation is in place, the person, their appropriate person or independent mental capacity adovate (IMCA), or anyone else can apply to challenge those arrangements under section 21ZA of the Mental Capacity Act 2004 at the Court of Protection.
In these circumstances, the court has the power to:
- uphold authorisations
- terminate authorisations
- vary the authorisation
It is also possible to challenge in court whether a decision maker is authorised by section 4B of the Mental Capacity Act 2005 (authorisation in exceptional circumstances) to take steps which amount to deprivation of liberty for life sustaining treatment or vital acts.
In some scenarios, a Responsible Body may need to make an application to the Court of Protection. For example, when a person should have had their case taken to court but, for some reason, that has not occurred.
There’s no means test for legal representation to challenge detention under an authorisation made under the LPS if the person, their appropriate person or IMCA is bringing the challenge. Otherwise, the person will have to satisfy a means test.