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

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