DC39-Mental Capacity and Deprivation of Liberty Safeguards Policy

Registration Number: {{org_field_registration_no}}

Mental Capacity and Deprivation of Liberty Safeguards Policy

1. Introduction

At {{org_field_name}}, we are committed to upholding the rights and dignity of all service users, ensuring that individuals receive care and support in a manner that respects their autonomy and decision-making abilities. This policy outlines our approach to assessing mental capacity and managing situations where restrictions may need to be applied in the best interests of service users, in line with the Mental Capacity Act 2005 (MCA) and the Deprivation of Liberty Safeguards (DoLS) framework.

We recognise that our care services must comply with the fundamental principles of the MCA, ensuring that individuals are supported to make their own decisions wherever possible, while also protecting those who lack capacity from harm. Our approach is aligned with CQC Regulation 11 – Need for Consent, which requires that all care and treatment be delivered with the informed consent of the individual or in their best interests if they lack capacity.

This policy applies to all employees, care workers, and managers involved in providing domiciliary care, ensuring that we meet our legal obligations and promote best practices in safeguarding vulnerable individuals.

2. Purpose and Scope

The purpose of this policy is to provide clear guidance on:

Assessing mental capacity and ensuring that individuals receive the necessary support to make informed decisions.
Making best interests decisions when a person is unable to make choices for themselves.
Recognising and managing situations where deprivation of liberty may occur in a domiciliary care setting.
Ensuring compliance with legal requirements under the MCA and DoLS framework.

This policy applies to all service users receiving domiciliary care from {{org_field_name}}, with particular focus on those with conditions affecting their cognitive function, such as dementia, learning disabilities, or brain injuries.

3. Understanding the Mental Capacity Act 2005

The Mental Capacity Act 2005 (MCA) provides a legal framework for supporting individuals to make their own decisions wherever possible and sets out how decisions should be made for those who lack capacity. It applies to individuals aged 16 and over in England and Wales and ensures that people who may have difficulties with decision-making are protected, empowered, and treated with dignity and respect.

At {{org_field_name}}, we ensure that all staff are trained in the MCA and apply its principles in day-to-day care. Our approach is designed to maximise independence while ensuring that service users who lack capacity receive appropriate support and protection.

The Five Key Principles of the Mental Capacity Act

The MCA is built upon five key principles, which underpin all decision-making regarding mental capacity. These principles are legally binding and must be followed by all staff when working with service users.

3.1. A Presumption of Capacity

This principle means that every adult is assumed to have capacity unless there is clear evidence to suggest otherwise. A person should not be treated as lacking capacity just because they have a disability, mental health condition, or cognitive impairment such as dementia or a learning disability.

At {{org_field_name}}, we train our staff to avoid making assumptions about a person’s ability to make decisions based on their diagnosis, age, appearance, or behaviour. Instead, staff must ensure that each individual’s capacity is assessed on a case-by-case basis and in relation to specific decisions rather than making a blanket judgement about their overall ability.

If concerns arise about an individual’s capacity, our team follows a structured assessment process to determine whether the person is able to make a particular decision at that moment.

3.2. The Right to Make Unwise Decisions

Every person has the right to make decisions that others may consider risky, unwise, or unusual. The MCA ensures that individuals are not deemed to lack capacity simply because their decisions do not align with conventional wisdom or what others think is best for them.

For example, a service user may choose to spend their money on non-essential items rather than saving for future expenses. While staff may have concerns about their financial choices, this does not mean the individual lacks capacity.

At {{org_field_name}}, we respect individual choice and autonomy, ensuring that personal preferences, values, and lifestyles are acknowledged and supported. Our staff are trained to distinguish between unwise decisions (which a person has the right to make) and decisions made without full understanding (which may indicate a lack of capacity).

3.3. The Duty to Support Decision-Making

Before concluding that someone lacks capacity, every possible effort must be made to help them understand the information and communicate their decision. This includes providing additional support, using different communication methods, and giving people extra time to process information.

At {{org_field_name}}, we use various strategies to support decision-making, including:

Breaking down information into simpler terms to make it easier to understand.
Using visual aids, gestures, or alternative communication tools for individuals with speech or language difficulties.
Ensuring a calm and distraction-free environment when discussing important decisions.
Providing repeated explanations over time to allow the person to process information at their own pace.
Involving trusted family members, advocates, or interpreters where appropriate to facilitate understanding.

By offering tailored support, we ensure that individuals have the best possible opportunity to make their own informed choices.

3.4. Best Interests Decision-Making

If a person is found to lack capacity for a specific decision, then any decision made on their behalf must be in their best interests. This means considering what the person would have wanted, involving family members, advocates, and professionals, and choosing the least restrictive option available.

When making best interests decisions, our staff consider:

The individual’s past and present wishes, beliefs, and values.
Input from family members, carers, or Independent Mental Capacity Advocates (IMCAs).
The benefits and risks of different options, ensuring that the decision minimises harm while respecting the person’s preferences.
Whether the individual may regain capacity in the future and whether the decision can be delayed until they can make it themselves.

At {{org_field_name}}, we ensure that all best interests decisions are documented clearly, including the reasoning behind them, the people involved in the decision-making process, and the steps taken to ensure the decision was lawful and ethical.

3.5. The Least Restrictive Option

When a decision must be made on behalf of someone who lacks capacity, it must interfere as little as possible with their rights and freedoms. The MCA requires that less restrictive alternatives be considered before imposing significant restrictions.

For example, if a service user with dementia has a tendency to leave their home unsafely, a locked door may seem like an immediate solution. However, a less restrictive alternative could be exploring the use of an alarm system or providing additional support from a carer at specific times.

At {{org_field_name}}, we are committed to ensuring that any interventions are necessary, proportionate, and the least restrictive possible while keeping service users safe.

How We Implement the Mental Capacity Act in Our Services

To ensure full compliance with the MCA, we have established clear procedures for assessing capacity, supporting decision-making, and safeguarding individuals’ rights.

Regular Training and Awareness: All staff receive in-depth training on the MCA and its application in domiciliary care.
Capacity Assessments as Standard Practice: Before making decisions on behalf of a service user, staff are trained to conduct thorough and legally compliant capacity assessments.
Involvement of Family and Advocates: We work closely with family members, legal representatives, and independent advocates to ensure decisions align with the individual’s best interests.
Comprehensive Record-Keeping: All decisions related to mental capacity assessments and best interests decisions are carefully documented to ensure transparency and legal compliance.
Ongoing Review of Decisions: Capacity assessments are not one-time judgements; we continuously review an individual’s ability to make decisions and adjust their care plan accordingly.

4. Assessing Mental Capacity

Assessing a person’s mental capacity is a fundamental responsibility in ensuring that individuals receive safe, ethical, and legally compliant care. Capacity assessments allow us to determine whether a service user is able to make specific decisions about their own care and treatment, and to ensure that any decisions made on their behalf are done so in their best interests.

Under the Mental Capacity Act 2005 (MCA), an individual’s ability to make decisions should always be assumed unless proven otherwise. This means that a lack of capacity must never be assumed based on a person’s age, condition, disability, or appearance. Instead, a structured, legally compliant assessment must be carried out when there is reason to believe that the person may not fully understand the implications of a decision.

At {{org_field_name}}, we ensure that all staff involved in care provision receive specialist training in mental capacity assessments so that they can apply the correct process when required.

4.1. When a Capacity Assessment is Required

A mental capacity assessment should only be conducted when there is a reasonable belief that a person may not be able to make a particular decision at a given time. This could be due to conditions such as:

Dementia or cognitive impairment affecting memory and reasoning.
Brain injuries or neurological conditions affecting understanding and decision-making.
Severe learning disabilities that impact the ability to process information.
Mental health conditions, such as schizophrenia or severe depression, affecting rational thought.
The effects of medication, alcohol, or drugs, which may impair judgment temporarily.

Capacity must always be assessed in relation to a specific decision at a specific time. A person may have the capacity to make some decisions (e.g., what they want to eat or wear) but not others (e.g., whether to consent to medical treatment).

Decisions requiring capacity assessments might include:

Whether the individual can safely manage their finances.
Whether they can consent to a care plan or medical treatment.
Whether they can understand risks associated with their choices.
Whether they can decide where they want to live.

4.2. The Two-Stage Capacity Assessment

When an assessment is required, our staff follow the two-stage test outlined in the Mental Capacity Act 2005 to determine if the person lacks capacity.

Stage 1: Determining an Impairment or Disturbance

The first stage assesses whether the individual has an impairment or disturbance in the functioning of their mind or brain that could affect their ability to make decisions.

This may include:

A diagnosed medical condition, such as Alzheimer’s, brain injury, or stroke.
A temporary impairment, such as delirium, extreme stress, or the side effects of medication.
A progressive condition, where mental capacity may fluctuate (e.g., multiple sclerosis, Huntington’s disease).

If no such impairment or disturbance is identified, the person is considered to have full capacity, and no further assessment is required.

Stage 2: Evaluating Decision-Making Ability

If an impairment is identified, the next step is to assess whether this impairment is preventing the person from making a specific decision at that time.

The MCA states that a person lacks capacity if they are unable to do one or more of the following:

Understand the relevant information – The person must be able to grasp the facts about the decision, including risks and consequences. If they struggle to process the information despite reasonable explanations, they may lack capacity.
Retain the information long enough to make a decision – The person must be able to hold the relevant information in their mind for long enough to consider their options. If memory problems prevent them from doing so, capacity may be impaired.
Weigh up the information and reach a decision – The person must be able to analyse the risks and benefits of different options and come to a rational conclusion. If they struggle with logical reasoning due to their condition, they may lack capacity.
Communicate their decision – The person must be able to express their choice in some way, whether verbally, in writing, through gestures, or assistive technology. If they can communicate their decision clearly, they should be considered to have capacity.

If an individual is unable to meet one or more of these criteria, they are considered unable to make the decision and will be deemed to lack capacity for that specific matter.

4.3. How Our Organisation Ensures a Fair and Legal Process

At {{org_field_name}}, we take a person-centred approach to capacity assessments, ensuring that individuals are given every possible opportunity to make their own decisions before concluding that they lack capacity.

To achieve this, we:

Use accessible communication methods – If a person struggles to understand verbal explanations, we use pictures, written summaries, visual aids, interpreters, or simplified language to help them process information.
Give additional time and support – Some individuals need more time or repetition to understand information. We ensure that capacity assessments are conducted at a time and place where the person is most comfortable.
Consult with relevant parties – Family members, carers, and Independent Mental Capacity Advocates (IMCAs) may provide insight into the person’s ability to make decisions and their past preferences.
Reassess capacity over time – Capacity can fluctuate, particularly in conditions such as dementia. If a person lacks capacity at one time, we regularly review the situation to determine if they regain decision-making ability.
Keep clear documentation – Every capacity assessment is recorded in detail, including:
- The decision being assessed.
- The assessment method used.
- The findings and outcome.
- Any supporting evidence or input from advocates.

By following these practices, we ensure that assessments are fair, legally compliant, and respect the individual’s rights and dignity.

4.4. Who Conducts a Capacity Assessment?

In routine care decisions, trained care staff at {{org_field_name}} can conduct a capacity assessment. However, for more complex or significant decisions—such as life-changing medical treatments or legal matters—a healthcare professional, social worker, or legal representative may be required to carry out the assessment.

Decisions that involve significant risks (such as moving into residential care or refusing life-saving treatment) must involve an Independent Mental Capacity Advocate (IMCA) to ensure the individual’s rights are protected.

4.5. The Role of the Court of Protection

If there is a dispute over a person’s capacity, or if a complex decision needs to be made that is not covered under standard MCA best interests procedures, the Court of Protection may be required to intervene.

The Court of Protection can:

Decide whether a person has capacity for a specific decision.
Appoint a Deputy to make ongoing decisions for a person who lacks capacity.
Grant authorisation for Deprivation of Liberty Safeguards (DoLS) in complex cases.

If a service user at {{org_field_name}} requires legal intervention, we work closely with legal professionals and social services to ensure their best interests are upheld.

4.6. Summary

Mental capacity assessments are an essential part of our duty of care, ensuring that all service users receive appropriate support without unnecessary restrictions on their freedom. By following the Mental Capacity Act 2005’s two-stage test, providing tailored support, and ensuring legal compliance, we uphold the highest standards of care and respect for individuals’ rights.

At {{org_field_name}}, our approach ensures that service users are always supported to make their own decisions whenever possible, while receiving safe and ethical care when they are unable to

5. Best Interests Decision-Making

When a person is found to lack the capacity to make a particular decision, the Mental Capacity Act 2005 (MCA) requires that any decision made on their behalf must be in their best interests. This ensures that the person’s rights, wishes, and well-being are central to the decision-making process.

At {{org_field_name}}, we follow a structured, person-centred approach to best interests decision-making, ensuring that every decision respects the individual’s dignity, autonomy, and unique preferences while prioritising their health, safety, and well-being.

5.1. Considering All Relevant Factors

When making a best interests decision, it is essential to take into account all aspects of the individual’s life to ensure that the decision reflects what they would have chosen if they had capacity.

This includes:

Past and present wishes and feelings – If the individual expressed clear preferences before losing capacity, these must be considered. This may be documented in advance statements, Lasting Powers of Attorney (LPA), or past conversations with family or carers.
Cultural, religious, and moral beliefs – The decision should align with the individual’s values and identity. For example, a service user from a specific religious background may have dietary restrictions or medical treatment preferences that must be respected.
Emotional well-being and personal relationships – Consideration must be given to how the decision will affect the person’s relationships and mental well-being. For instance, a decision about moving a service user into a care home should take into account their attachments to their home environment, family, and social connections.
The benefits and risks of different options – Each possible choice must be carefully weighed, ensuring that potential harm is minimised while promoting independence and quality of life.

At {{org_field_name}}, we document all considerations thoroughly to demonstrate that decisions have been made in line with legal requirements and ethical principles.

5.2. Involving the Individual in Decision-Making

Although a person may lack capacity for a specific decision, this does not mean they should be excluded from the decision-making process. We ensure that individuals are involved as much as possible, giving them the opportunity to:

Express their preferences using accessible communication methods, such as visual aids, sign language, or assistive technology.
Participate in discussions about their care, even if they cannot make the final decision themselves.
Experience different options where possible – For example, if a service user is struggling to decide whether to accept a care package, we may arrange a trial period to allow them to experience the arrangement before a final decision is made.

Our staff are trained to provide information in a way that is understandable to the individual, ensuring that they have every opportunity to contribute to decisions affecting their life.

5.3. Consultation with Family Members, Advocates, and Legal Representatives

Best interests decision-making must involve the right people, ensuring that different perspectives are considered. Where appropriate, we consult:

Family members and close friends who have insight into the individual’s wishes and preferences.
Health and social care professionals, such as GPs, social workers, or occupational therapists, to provide expert opinions on medical or care-related decisions.
A legally appointed Lasting Power of Attorney (LPA) if the person has designated someone to make decisions on their behalf.
Independent Mental Capacity Advocates (IMCAs) when there is no family or trusted representative available.

While family input is valuable, the final decision must always be based on the best interests of the individual, not the preferences of relatives. If disagreements arise, we follow a structured mediation process, and if necessary, involve the Court of Protection for legal resolution.

5.4. Exploring the Least Restrictive Option

The Mental Capacity Act 2005 requires that any decision made in a person’s best interests must use the least restrictive option available. This means that any actions taken must interfere as little as possible with the individual’s rights and freedoms.

For example:

If a service user with dementia is at risk of wandering, rather than locking doors (which may deprive them of liberty), we may consider using sensor alarms, supervised outings, or structured routines to ensure safety while maintaining freedom.
If a person refuses personal care but lacks capacity to understand the risks, we explore alternative methods, such as building trust through familiar carers, adjusting the timing of care, or using gentle persuasion, rather than enforcing care against their wishes.

At {{org_field_name}}, we prioritise dignity, choice, and autonomy, ensuring that any restrictions are justified, proportionate, and time-limited.

5.5. When is an Independent Mental Capacity Advocate (IMCA) Required?

In cases where a significant decision needs to be made and there are no family members or legally appointed representatives available, the law requires that an Independent Mental Capacity Advocate (IMCA) be involved.

Significant decisions that require an IMCA include:

Long-term changes to living arrangements, such as moving into a care home.
Major medical decisions, such as surgery or refusal of life-sustaining treatment.
Serious financial matters where a best interests decision is required.

IMCAs provide an independent and impartial viewpoint, ensuring that decisions are made lawfully and in the best interests of the individual. At {{org_field_name}}, we liaise with local IMCA services when needed to ensure compliance with legal obligations.

5.6. Documentation and Accountability

All best interests decisions must be clearly documented to provide evidence that they were made in accordance with the Mental Capacity Act 2005. This includes:

A summary of the capacity assessment that led to the best interests decision.
A record of the people involved in the decision-making process.
A clear explanation of the considerations taken into account, including the person’s past and present wishes.
The final decision made and why it was deemed the least restrictive and most appropriate option.

At {{org_field_name}}, we maintain detailed records of all best interests decisions, ensuring that they can be reviewed and challenged if necessary. All documentation is securely stored in line with GDPR and data protection regulations.

5.7. Disputes and Legal Intervention

Sometimes, disagreements arise between family members, professionals, or advocates about what is truly in a person’s best interests. If a dispute cannot be resolved through discussion and mediation, the case may be referred to the Court of Protection, which has the legal authority to:

Make a final ruling on the individual’s best interests.
Appoint a Deputy to make ongoing decisions if necessary.
Resolve disputes between family members and professionals.

At {{org_field_name}}, we work proactively to resolve disputes amicably, ensuring that service users receive the care and support that is in their best interests while avoiding unnecessary legal action.

5.8. Summary

Best interests decision-making is a critical process in ensuring that individuals who lack capacity are treated fairly, ethically, and in accordance with the law.

At {{org_field_name}}, we follow a structured approach to best interests decisions by:

Considering all aspects of the individual’s life to ensure decisions align with their preferences and values.
Involving the individual as much as possible, even if they lack capacity.
Consulting family, legal representatives, and independent advocates when appropriate.
Choosing the least restrictive option to uphold dignity and independence.
Documenting all decisions clearly to ensure accountability and transparency.

6. Deprivation of Liberty Safeguards (DoLS) in Domiciliary Care

6.1. Understanding Deprivation of Liberty

The Deprivation of Liberty Safeguards (DoLS) is a legal framework under the Mental Capacity Act 2005 (MCA) designed to protect individuals who lack mental capacity and are at risk of being deprived of their liberty for their own safety or care. The framework ensures that any restrictions placed on an individual’s freedoms are necessary, proportionate, and legally authorised.

Deprivation of liberty refers to situations where a person is under continuous supervision and control and not free to leave their care setting. Traditionally, DoLS applied only to individuals in hospitals and care homes, where providers had to seek authorisation from the local authority. However, individuals receiving domiciliary care may also be deprived of their liberty if their care arrangements are restrictive, requiring an application to the Court of Protection for legal authorisation.

At {{org_field_name}}, we are committed to ensuring that any restrictions placed on service users are lawfully justified, properly recorded, and the least restrictive possible, in accordance with legal requirements and CQC Regulation 13 – Safeguarding Service Users from Abuse and Improper Treatment.

6.2. When DoLS Applies in a Domiciliary Care Setting

DoLS applies in domiciliary care when a person receiving care at home lacks the capacity to consent to their care arrangements, and those arrangements significantly restrict their freedom. Some examples include:

The individual is constantly supervised and cannot leave their home freely, even with support.
Physical restraints, locked doors, or electronic monitoring are used to prevent the person from leaving.
The person is prevented from seeing certain people or engaging in activities due to safety concerns.
The person is subject to significant medication control that affects their ability to make choices.
There is no realistic alternative to their current living situation because other options have been deemed unsafe.

If a service user’s care plan includes any of these restrictive elements, we must consider whether a deprivation of liberty is occurring and, if so, take steps to ensure it is legally authorised.

6.3. The Legal Process for Authorising a Deprivation of Liberty in Domiciliary Care

Unlike care homes and hospitals, where DoLS authorisation is granted by the local authority, domiciliary care settings require an application to the Court of Protection to authorise any deprivation of liberty.

At {{org_field_name}}, we follow a structured process to ensure full compliance with the law:

Assessing Whether a Deprivation of Liberty is Occurring
- We conduct a care plan review to determine whether the service user’s freedoms are restricted in a way that meets the legal definition of a deprivation of liberty.
- We ensure that less restrictive alternatives have been explored and that the restrictions are truly necessary for the individual’s safety and well-being.
Consulting with the Individual and Their Representatives
- We involve the service user as much as possible in discussions about their care.
- We consult family members, legal representatives, and advocates to gather their views.
- If there is no one suitable to represent the individual, we involve an Independent Mental Capacity Advocate (IMCA).
Submitting an Application to the Court of Protection
- If we determine that a deprivation of liberty cannot be avoided, we work with the local authority or legal professionals to submit an application to the Court of Protection.
- The application includes a detailed care plan, medical assessments, and supporting evidence to justify the deprivation of liberty.
Reviewing and Monitoring the Authorisation
- Once authorised, we regularly review the care arrangements to ensure they remain necessary.
- If circumstances change (e.g., the person regains capacity or their care needs change), we seek to remove or modify restrictions as soon as possible.

By following this process, we ensure that any deprivation of liberty is lawful, justified, and kept under regular review.

6.4. Ensuring Least Restrictive Practices

The MCA requires that any restrictions on liberty be as minimal as possible, meaning that care plans should prioritise the least restrictive interventions while still ensuring safety.

At {{org_field_name}}, we:

Explore alternative solutions before applying for a DoLS authorisation, such as assistive technology, structured routines, or additional support staff.
Regularly review care plans to reduce restrictions wherever possible.
Ensure that staff are trained in positive risk-taking, allowing individuals to have as much control over their lives as possible while keeping them safe.

For example, instead of locking doors to prevent a service user from leaving their home, we might:

Use sensor alarms to alert carers when they leave.
Implement a structured support plan to encourage safe outings.
Work with family members to provide a familiar, supervised environment that supports independence.

These approaches help ensure that we only use deprivation of liberty as a last resort.

6.5. The Role of the Court of Protection and Lasting Powers of Attorney (LPA)

If there is disagreement about a person’s care arrangements or if serious decisions need to be made, the Court of Protection can make rulings on:

Whether a deprivation of liberty is justified.
Appointing a Deputy to make ongoing care decisions.
Reviewing cases where there is dispute between family members and professionals.

If a service user has a Lasting Power of Attorney (LPA) for Health and Welfare, the appointed representative has legal authority to make certain care decisions on their behalf. However, they cannot authorise a deprivation of liberty—this must always go through the Court of Protection.

At {{org_field_name}}, we work closely with families, legal representatives, and local authorities to resolve issues proactively, ensuring that legal intervention is only sought when absolutely necessary.

6.6. Staff Training and Responsibilities

Ensuring compliance with DoLS requires that all care staff understand their legal responsibilities. At {{org_field_name}}, we provide:

Mandatory training on the MCA and DoLS for all staff, ensuring they can recognise and report potential deprivations of liberty.
Specialist guidance for managers on how to apply DoLS appropriately and liaise with legal authorities.
Regular audits of care plans to ensure that restrictions are justified and proportionate.

By empowering staff with knowledge, we ensure that service users’ rights are respected and upheld at all times.

6.7. Monitoring and Compliance

We maintain robust monitoring procedures to ensure that all deprivation of liberty authorisations are reviewed regularly. Our approach includes:

Quarterly care plan reviews to assess whether restrictions remain necessary.
Family and advocate involvement in decision-making processes.
Regular internal audits to ensure that all legal requirements are met.
Ongoing staff training to keep up to date with legal changes, including the anticipated Liberty Protection Safeguards (LPS), which will replace DoLS in the future.

6.8. Anticipating Future Changes – The Liberty Protection Safeguards (LPS)

The Liberty Protection Safeguards (LPS) is set to replace DoLS and will expand protections to cover all care settings, including domiciliary care, hospitals, and supported living. Key changes include:

A simplified, person-centred process that allows care providers to obtain authorisation more efficiently.
Greater focus on involving the individual in decision-making.
New safeguards for young people aged 16-17, who were not previously covered under DoLS.

At {{org_field_name}}, we are preparing for these changes by training staff on the upcoming reforms and ensuring our care planning processes align with the new legal framework.

7. Staff Training and Responsibilities

All employees receive comprehensive training on the Mental Capacity Act 2005, best interests decision-making, and DoLS to ensure they understand their legal and ethical responsibilities. Training covers:

How to conduct and document capacity assessments.
Techniques for supporting decision-making and communication.
Recognising signs of undue restriction or deprivation of liberty.
The process for seeking legal authorisation when necessary.

Managers are responsible for overseeing capacity assessments and ensuring that best interests decisions are made in compliance with the law. Our designated Mental Capacity Lead provides guidance on complex cases and liaises with external professionals, such as social workers and legal representatives.

8. Monitoring and Compliance

At {{org_field_name}}, we are committed to ensuring that our approach to mental capacity and deprivation of liberty is not only legally compliant but also aligned with best practices in ethical, person-centred care. To achieve this, we have robust monitoring and compliance systems in place that allow us to review and refine our policies and procedures on an ongoing basis.

Regular audits, staff oversight, and external collaboration ensure that all decisions regarding mental capacity assessments, best interests decisions, and deprivation of liberty safeguards (DoLS) are handled correctly. By proactively monitoring compliance, we protect the rights and freedoms of the individuals in our care while maintaining high professional standards.

8.1. Ongoing Review of Care Plans and Risk Assessments

A fundamental part of compliance is ensuring that each service user’s care plan is regularly reviewed to reflect any changes in their capacity or care needs. We conduct:

Scheduled Care Plan Reviews – Every care plan is reviewed at least every six months or sooner if there is a significant change in the individual’s condition. This includes reassessing whether they still lack capacity for certain decisions and whether any restrictions remain necessary.
Dynamic Risk Assessments – Staff continuously assess risks in real-time, especially for individuals with fluctuating capacity. If a person’s mental capacity improves, we work to remove or modify unnecessary restrictions.
Multi-Disciplinary Input – Care plans are reviewed with input from healthcare professionals, social workers, families, and advocates to ensure that all decisions reflect the person’s best interests and changing needs.

By regularly updating care plans, we ensure that we are only applying the least restrictive interventions and that individuals receive appropriate levels of autonomy and support.

8.2. Auditing Mental Capacity and Best Interests Decision-Making

To ensure that our mental capacity assessments and best interests decisions are accurate, well-documented, and legally compliant, we conduct regular audits of:

Mental Capacity Assessments (MCAs) – We check that MCAs are carried out whenever required and that staff follow the two-stage test properly.
Best Interests Decisions – We verify that all decisions made on behalf of individuals who lack capacity are clearly recorded, including the reasons for the decision and the people involved in the decision-making process.
DoLS Applications and Authorisations – Where a deprivation of liberty is identified, we ensure that the correct legal process has been followed, whether through a local authority DoLS authorisation (for care homes/hospitals) or a Court of Protection application (for domiciliary care).

Audits are conducted by senior managers and the designated Mental Capacity Lead, and findings are used to identify areas for improvement, additional staff training needs, and potential risks.

8.3. Ensuring Staff Compliance with Legal Guidelines

All employees are expected to follow legal frameworks and internal policies related to mental capacity and deprivation of liberty. To reinforce compliance:

Supervisors conduct spot-checks on staff to ensure that they are carrying out capacity assessments correctly and following best interests procedures.
Staff performance is monitored through regular supervision meetings, where any challenges related to mental capacity decisions can be discussed and addressed.
Refresher training sessions are provided for any staff who need additional support in understanding their responsibilities under the Mental Capacity Act (MCA) and DoLS.

If any non-compliance or gaps in practice are identified, we take immediate corrective action through additional training, policy updates, or disciplinary measures if necessary.

8.4. Working with External Regulators and Safeguarding Authorities

To ensure full compliance with legal and regulatory requirements, we work closely with external bodies, including:

Care Quality Commission (CQC) – As part of our CQC inspections, we provide evidence of how we assess mental capacity, make best interests decisions, and apply DoLS appropriately. We welcome CQC feedback to continuously improve our practices.
Local Safeguarding Teams – We collaborate with local safeguarding adults’ boards (SABs) and social services to review cases where individuals may be at risk due to inappropriate restrictions on their liberty.
Independent Mental Capacity Advocates (IMCAs) – Where required, we involve IMCAs in best interests decisions to provide an impartial perspective, ensuring that the rights of service users are fully protected.
Legal Advisors and the Court of Protection – When necessary, we seek legal advice and make applications to the Court of Protection to authorise deprivations of liberty in domiciliary care settings.

This collaborative approach ensures that all decisions affecting service users’ freedom, capacity, and care choices are lawfully and ethically sound.

8.5. Keeping Up to Date with Legislative Changes

The legal landscape surrounding mental capacity and deprivation of liberty is continuously evolving. To remain compliant, {{org_field_name}} stays up to date with:

Changes in MCA and DoLS legislation, including upcoming reforms such as the Liberty Protection Safeguards (LPS), which will replace DoLS.
New guidance from CQC and safeguarding authorities regarding best practices in mental capacity and deprivation of liberty.
Recent court rulings and case law that may influence how best interests decisions are made in health and social care.

We ensure that all policy updates are communicated to staff through team meetings, formal training, and internal bulletins.

8.6. Internal Reviews and Continuous Improvement

We conduct annual internal policy reviews to assess whether our approach to mental capacity and deprivation of liberty is effective, legally compliant, and aligned with best practice standards.

Areas we evaluate include:

Staff training effectiveness – Are employees confident in applying the MCA and DoLS?
Quality of capacity assessments and best interests decisions – Are decisions well-documented and reviewed regularly?
Compliance with legal requirements – Are we meeting CQC, safeguarding, and local authority expectations?
Feedback from service users and families – Are care decisions meeting the individual needs of those receiving support?

Any gaps or weaknesses identified during internal reviews lead to policy updates, further staff training, and enhanced oversight to continually improve our approach.

Responsible Person: {{org_field_registered_manager_first_name}} {{org_field_registered_manager_last_name}}
Reviewed on: {{last_update_date}}
Next Review Date: {{next_review_date}}
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