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Mental Capacity and Deprivation of Liberty Safeguards (DoLS) Policy

Purpose

This policy outlines how {{org_field_name}} protects the rights of residents under the Mental Capacity Act 2005 (MCA) and the Deprivation of Liberty Safeguards (DoLS). It ensures our care home complies with all legal requirements and provides guidance to staff on assessing mental capacity, making best interest decisions, and lawfully depriving liberty only when absolutely necessary. The policy also describes how we are preparing for the future Liberty Protection Safeguards (LPS) that will replace DoLS, ensuring a smooth transition while maintaining compliance with current laws. Ultimately, the purpose is to uphold residents’ dignity, safety, and human rights at all times.

Scope

This policy applies to all staff, managers, and residents of {{org_field_name}}, including care assistants, nurses, ancillary staff, and the management team (inclusive of the Registered Manager, {{org_field_registered_manager_first_name}} {{org_field_registered_manager_last_name}}). It guides staff in day-to-day care as well as decision-making for residents who may lack capacity. The policy is relevant in both our residential and nursing care units and must be followed by permanent employees, agency or bank staff, volunteers, and any others involved in residents’ care. It also informs residents and their families about our procedures regarding mental capacity and DoLS, reinforcing our commitment to transparency and lawful, compassionate care.

Policy Principles

All staff must adhere to the five key principles of the Mental Capacity Act 2005, which set the foundation for all actions and decisions:

• Presumption of capacity: Every adult is assumed to have capacity to make their own decisions unless it is proven otherwise. We do not assume someone cannot decide just because they have a diagnosis or disability.
• Support to make decisions: We take all practicable steps to help a person make their own choices before concluding they lack capacity. This includes communicating in appropriate ways, providing information in an accessible format, or involving specialists to aid understanding.
• Right to make unwise decisions: People have the right to make decisions others might consider unwise or eccentric. An unwise choice does not automatically mean the person lacks capacity.
• Best interests: If a person is assessed as lacking capacity for a specific decision, any decision made for them must be in their best interests. We follow a structured process to determine this (see Best Interests Decision-Making below), always putting the resident’s welfare first.
• Least restrictive option: Any intervention or decision made on behalf of someone lacking capacity should be the least restrictive option possible, balancing safety with respect for the person’s freedom. We only limit a resident’s rights or freedoms if it is necessary and proportionate to prevent harm, and we never impose blanket restrictions.

These core principles are reflected throughout our practices, care plans, and this policy. In addition, we uphold the human rights of residents as set out in the Human Rights Act 1998 – for example, the right to liberty (Article 5) and the right to private and family life (Article 8) – which are central considerations in all capacity and DoLS decisions.

Assessing Mental Capacity

When to Assess Capacity

Staff should assess a resident’s mental capacity whenever there is doubt about the person’s ability to make a specific decision that needs to be made at that time. Capacity is decision-specific and time-specific – a resident may be able to make some decisions (e.g. what to wear or eat) but not others (e.g. managing finances or agreeing to medical treatment), and capacity can fluctuate over time. Routine daily choices do not require formal capacity assessments if the person is clearly able to decide; however, significant decisions about care, treatment, or living arrangements should trigger a capacity assessment if there is reason to question the person’s understanding. All assessments and their outcomes must be documented in the care records.

How to Assess Capacity

{{org_field_name}} follows the standard two-stage test of capacity as defined in the MCA Code of Practice:

1. Diagnostic stage: Is there an impairment of, or disturbance in, the functioning of the person’s mind or brain? Examples might include dementia, learning disability, mental illness, brain injury, confusion due to infection, intoxication, etc. (Note: the existence of a condition alone does not prove lack of capacity, but it satisfies this first stage to consider capacity further.)
2. Functional stage: If such an impairment or disturbance is present, is the person unable to make the specific decision in question because of that impairment? The MCA defines inability to make the decision as failing any one of these abilities:
   • Understand the information relevant to the decision (e.g. nature, purpose, consequences of options).
   • Retain that information long enough to make the decision (memory may be short, but enough to use the information).
   • Use or weigh that information as part of the decision-making process (e.g. cannot compare pros and cons due to the impairment).
   • Communicate their decision (by any means – verbal, sign, gestures, communication aids).

If a person cannot do one or more of these four tasks because of the impairment in mind/brain, they are deemed to lack capacity for that specific decision at that time. The assessment should involve:

• Maximal support: Make sure you have tried to help the person understand or communicate (use simple language, visual aids, involve speech therapy, etc.).
• Appropriate timing and setting: Assess at a time of day when the person is calm/most alert, in a quiet comfortable environment, and if possible when family or a familiar person is present for support. Avoid times when the person is in pain, distressed, or affected by medication if possible.
• Involvement: Explain to the person why you are checking their capacity and involve them throughout. Use their preferred communication methods (hearing aids, glasses, communication device, etc.).
• Consultation: If needed, get input from professionals (e.g. psychologist, GP) about the person’s condition and ability, especially for complex or borderline cases.

Recording: Document the outcome of every capacity assessment in the care notes or on a Mental Capacity Assessment form. Include what decision was at stake, evidence of the impairment, questions asked, responses given, what support was provided to help the person decide, and which of the functional abilities were lacking. This record is essential to demonstrate we have followed the MCA and to provide a clear rationale for any subsequent best interest decision. If there is any doubt or dispute about a capacity assessment, the issue can be escalated to the Registered Manager, and if necessary a formal assessment or second opinion may be sought (e.g. via social worker or mental health specialist).

Certain decisions are never allowed to be made on someone’s behalf under the MCA, regardless of capacity. These include decisions about marriage or civil partnership, divorce, sexual relationships, adoption, or voting, among others. Staff should be aware that these personal life decisions are outside the scope of best interest decision-making and cannot be taken for the person by anyone else.

Best Interests Decision-Making

If a resident has been assessed as lacking capacity for a specific decision, staff must ensure that any action or decision we then take is in that person’s best interests. The MCA provides a checklist of factors for determining best interests, which we diligently follow. The decision-maker (the staff member or professional responsible for the decision or action – this could be the care worker for day-to-day care decisions, the nurse for healthcare decisions, or the doctor for treatment decisions, etc.) should:

• Encourage Participation: Involve the person as much as possible in the decision. Even if they cannot decide, they may express wishes or feelings. Use the person’s preferred communication and continue to explain what is happening.
• Consider Past and Present Wishes, Feelings, and Values: Gather information about the person’s previously expressed preferences (e.g. from advance care plans, conversations, or any Advance Decision or Health and Welfare Lasting Power of Attorney). Consider any known beliefs, values or cultural factors that would influence what they would have wanted. For example, religious beliefs might affect medical decisions, or lifelong habits might affect care routines.
• Consult Others: Speak with people who know the resident well to inform the decision. This includes family members, close friends, any Attorney under a Lasting Power of Attorney (LPA) for health and welfare, or a Court-appointed Deputy, if applicable. If the person has an Independent Mental Capacity Advocate (IMCA) (see next section) or is likely to require one, involve them. The views of all consultees should be considered, but remember the final decision rests with the decision-maker, not with the family. Document who was consulted and what their views were.
• Avoid Discrimination: Do not make assumptions about what is in someone’s best interests based on their age, appearance, ethnicity, gender, behavior or condition. Every decision is individual. For example, never assume “life in a care home is automatically best” or “this person doesn’t need therapy because of their age” – base it on the person’s unique situation.
• All Relevant Circumstances: Take into account all factors that would be relevant to the decision – medical opinions, the person’s welfare (physical and emotional), risks and benefits of each option, etc. If the decision is complex or contentious, staff should use a “balance sheet” approach – list the pros and cons of each option and weigh them to determine which option overall seems to most benefit the person.
• Possibility of Gaining Capacity: Consider if the decision can be postponed because the person may regain capacity in the future. For example, if the person is delirious or recovering from an acute illness, non-urgent decisions should wait until they have recovered if possible. However, if waiting would cause harm or it’s a time-sensitive decision, then proceed in best interests.
• Least Restrictive Option: When choosing between valid options, choose the one that is less restrictive of the person’s rights and freedoms, while still meeting their needs. (This echoes the fifth principle of the MCA.) For instance, if deciding living arrangements, consider whether care can be provided in a more open setting or with fewer restraints rather than a locked unit, if it’s safe. Any restriction should be proportionate to the risk it mitigates.
• Special Considerations: For decisions about life-sustaining treatment, staff must not be motivated by a desire to bring about the person’s death. The decision should not be based on judgments about the person’s “quality of life” (which could be discriminatory), but on clinical best interests and the person’s own values and wishes. Typically a doctor will lead such decisions, but care staff should ensure the processes (e.g. best interests meeting) are followed.

After weighing all of the above, the decision-maker will decide the course of action that best aligns with the person’s welfare and rights. Record the rationale in detail in the care plan or a Best Interests Decision form: note the decision made, why it’s in the person’s best interests, who was consulted, and how the decision complies with the MCA criteria. This documentation protects both the person and staff, by demonstrating a transparent decision process if later questioned by family, management, or inspectors. If there is serious disagreement about what is in a person’s best interests (for example, between the care home and family or between professionals), the Registered Manager should seek a case conference or a best interests meeting involving an external care manager or social worker. In complex cases, it may be necessary to seek a resolution via the Court of Protection, which has authority to make determinations on capacity and best interests disputes.

Involving Family, Advocates, and IMCAs

Family members and friends play an important role in our approach to capacity and DoLS. With the resident’s permission (if they have capacity), or as part of best interest consultation (if they lack capacity), we involve families or those closest to the resident in discussions about care decisions. We recognize that those who know the resident well can provide valuable insight into their personality, history, and wishes. Families are kept informed of significant decisions and any applications for DoLS authorisations relating to their loved one, in line with confidentiality and consent requirements.

Where a resident has formally appointed someone to help with decision-making, we will involve them appropriately:

• Lasting Power of Attorney (LPA): If the resident has an LPA for Health and Welfare (and it’s registered and active, and the person now lacks capacity for the decision at hand), the attorney has legal authority to make certain decisions. We will consult and, where appropriate, defer to the LPA on decisions within their power (unless it’s a type of decision they cannot make, or we have reason to challenge their acting in best interests, in which case advice will be sought). Similarly, any LPA for Property and Financial Affairs will be consulted for decisions about finances or property if the person lacks capacity for those.
• Court Appointed Deputy: If a deputy has been appointed by the Court of Protection for the resident, we will involve the deputy in decisions consistent with the deputy’s court order (for example, a deputy for personal welfare or for finance, as applicable).

Independent Mental Capacity Advocates (IMCAs): An IMCA is a specially trained advocate appointed to support a person who lacks capacity and has no one else suitable to consult (no family or friends available) for important decisions. By law, for certain serious decisions an IMCA must be involved if the person lacks capacity and is unbefriended (no family/friends to represent them):

• Serious medical treatment decisions proposed by the NHS (e.g. major surgery, treatments with significant risk).
• Moves to long-term care – if the proposal is to place the person in a hospital for 28+ days or in a care home for 8+ weeks, and they have no family or LPA to consult, an IMCA must be appointed.
• DoLS – if a DoLS authorisation is being considered for a person with no appropriate family/friend, the Supervisory Body (local authority) must appoint either a Relevant Person’s Representative (RPR) and/or an IMCA to represent the person during the DoLS process. (Under DoLS, usually an RPR is appointed upon authorisation – often a family member or friend – but if the person has no one, a paid RPR or IMCA will be provided by the local authority.)

Additionally, local authorities or NHS bodies have discretion to involve an IMCA in care reviews or adult safeguarding cases if the person is unbefriended. At {{org_field_name}}, staff should alert the Registered Manager if they suspect a resident needs an IMCA. The Registered Manager will contact the relevant local authority to arrange for an IMCA as soon as one is required, ensuring no decision is delayed. Staff must cooperate fully with any IMCA, providing them access to the person and relevant records, and taking their views into account. IMCAs have a legal right to information and to be involved in discussions, and our staff are expected to understand their role and support it.

We emphasize that the involvement of family or advocates does not remove our responsibility to act lawfully. Even if family disagree with a capacity assessment or DoLS need, we must follow the MCA and DoLS framework. However, we work sensitively with families, explaining our duties and the person’s rights, to achieve consensus and understanding whenever possible.

Deprivation of Liberty Safeguards (DoLS) Procedure

Identifying a Potential Deprivation of Liberty

DoLS is the legal framework that allows care homes (and hospitals) to lawfully deprive someone of their liberty, but only when necessary to provide care or treatment and protect them from harm, and only when the person lacks capacity to consent to those arrangements. A deprivation of liberty goes beyond normal restrictions of a care setting – it means the person is under continuous supervision and control and is not free to leave the home (either not allowed or unable to leave due to control). This is sometimes called the “acid test” based on a Supreme Court ruling: if (1) a resident is subject to continuous supervision/control, and (2) the resident is not free (or not allowed) to leave the premises to live somewhere else, then they are likely deprived of their liberty. It does not matter whether the person is making active objections or whether the setting is comfortable – even a “gilded cage” can be a deprivation of liberty. The focus is on the objective conditions of their care.

Staff must be vigilant to recognize when a resident’s care plan might amount to a deprivation of liberty. Some indicators include:

• The person is constantly supervised or monitored to ensure their safety (e.g. 1:1 staffing at all times, or checks throughout day and night).
• The person would not be allowed to leave the home unsupervised, or at all, even if they wished to (for example, doors are locked/alarmed and they would be brought back if they tried to go out).
• Significant use of restraints or restrictive practices: e.g. bedrails, lap belts, locked areas, sedation/medication given frequently to control behavior.
• The person (or their family) is objecting to some element of care or residence and we must nevertheless enforce it for safety (e.g. refusing to stay but being persuaded or prevented from leaving).
• Friends/family objections: Family disagree with the person being here or under certain restrictions, indicating conflict.

If these features are present and the person lacks capacity to consent to the care arrangement, we must treat this as a potential deprivation of liberty. It is illegal to continue such an arrangement without proper authorisation. Note: DoLS only applies to care homes and hospitals. If a person is in a setting like supported living or their own home, a court order from the Court of Protection is required for any deprivation of liberty – in such cases, we would liaise with social services to secure the appropriate authorisation from the court.

Applying for a DoLS Authorisation

{{org_field_name}}, as a CQC-registered care home, is a “Managing Authority” under DoLS. We must request an authorisation from the local authority (the “Supervisory Body”) in order to lawfully deprive a resident of liberty. The Registered Manager (or a designated senior staff member) is responsible for making DoLS applications to the relevant Local Authority DoLS Team. The process is:

• Assess the need: When staff or managers identify a possible deprivation (as described above), first consider if changes can be made to the care plan to reduce restrictions (see Least Restrictive Practice below). If no safe, less-restrictive alternative is feasible and the restrictive measures are necessary for safety, then proceed to seek authorisation.
• Check criteria: Ensure the person is 18 or older (DoLS applies only to adults). Confirm that the person lacks capacity to consent to the arrangements (documented via a recent capacity assessment). Also verify that the situation isn’t already under the authority of the Mental Health Act (if they are detained under MHA in a hospital, DoLS would not apply – known as the eligibility test).
• Request Standard Authorisation: If the need for restrictions is foreseeable (not an emergency), complete a DoLS Standard Authorisation request form and send it to the local authority. Include details of the care arrangements, why they are necessary, and evidence of the capacity assessment and steps taken. The local authority must arrange for a series of six assessments (age, mental capacity, mental health, no refusals, eligibility, and best interests) to decide if criteria are met. They have 21 days to do this for a standard request. Planning ahead is crucial – for example, if we anticipate a new admission who may require DoLS, send the request in advance.
• Urgent Authorisation: If an unanticipated situation arises where we believe we must immediately deprive a person of liberty for their safety, the care home can itself grant an Urgent Authorisation (this is done by the Registered Manager signing an urgent DoLS form). This allows us to legally deprive liberty for a short period (up to 7 days initially). On giving an urgent authorisation, we must simultaneously apply for a Standard Authorisation to the local authority. If the local authority cannot complete the assessment in 7 days, we may request an extension of the urgent authorisation for a further 7 days (max 14 days total).
• Consent of Representatives: When making the application, inform the resident’s family or any LPA/Deputy of our intent to apply for DoLS (unless there are safeguarding reasons not to involve a particular person). Their input will be considered by the Best Interests Assessor (BIA) appointed by the local authority.
• Notification: Whenever a DoLS application is made (and once an outcome is received), the Registered Manager will notify the Care Quality Commission (CQC) as required by regulations. CQC Regulation 18 (Notification of other incidents) obliges us to inform CQC of the outcome of DoLS requests without delay, whether authorised or not. This is done via the CQC online portal form. We also document the application in the resident’s care notes and inform the multidisciplinary team as needed.

After Authorisation is Granted

If the local authority grants a Standard DoLS Authorisation, they will issue a certificate with the start date and expiry date (up to 12 months maximum), and may include specific conditions we must follow. The Registered Manager will ensure any conditions (e.g. providing a certain therapy, allowing specific family contact, regular reviews, etc.) are integrated into the care plan and strictly followed. Key points post-authorisation:

• Relevant Person’s Representative (RPR): The Supervisory Body will appoint an RPR – usually a family member or friend – to support and represent the resident throughout the authorisation period. If the resident has no suitable family/friend, a paid RPR (often an advocate) will be appointed. We will cooperate with the RPR, welcome them to visit the resident, and facilitate their role. The RPR has a duty to ensure the person’s best interests are being met and that the DoLS criteria continue to be satisfied; they can also assist the person in exercising their rights (like challenging the authorisation).
• Care Plan Reviews: The care team should continue to look for ways to reduce restrictive measures. Just because an authorisation is in place does not mean we stop striving for less restrictive alternatives. If the person’s condition improves or circumstances change such that restrictions can be lifted or lessened, we should do so and inform the local authority – it may mean the DoLS authorisation is no longer needed and can be terminated early.
• Monitoring and Recording: Throughout the period of authorisation, staff must closely monitor the person’s well-being. Any use of restraint, sedation, or significant incidents must be recorded. We maintain records of when the person was checked, any occasions when they attempted to leave or showed distress, etc., to evidence that we’re using the deprivation appropriately and humanely, and to assist in reviews.
• Reviews and Renewals: DoLS authorisations can be for a maximum of 12 months. The Supervisory Body may conduct a review if circumstances change or if requested by the person, their RPR, or the care home. The Registered Manager should request a review or reassessment if we believe the authorisation is no longer necessary or conditions need changing. If continuing beyond the expiry, a renewal application must be made to the local authority in advance (essentially a new assessment). We diarize DoLS expiry dates to ensure no lapse in lawful authority if restrictions must continue – or to cease restrictions if they are no longer justified.
• Rights to Challenge: Staff should be aware (and remind the resident or RPR) that the resident or their representative has the right to challenge the DoLS authorisation via the Court of Protection if they wish. If a resident or their family indicates they want to appeal, the home will facilitate contact with legal advice or the local authority DoLS team to support that process. An IMCA can be appointed (if not already) specifically under DoLS to help the person or RPR with a challenge if needed.

If an authorisation is not granted (i.e. the assessments found the person is not actually being deprived of liberty or it’s not in best interests), then we must immediately review our care plan and change any measures that were overly restrictive. Essentially, if the local authority denies DoLS, continuing the same level of restriction would be unlawful – so we must seek alternative strategies or involve the Court of Protection if we still have serious concerns. The Registered Manager will consult the assessors’ feedback and work with the social worker or BIA on a plan forward.

All DoLS documentation (requests, authorisations, assessments, reviews, etc.) will be kept confidentially in the care home’s records. We maintain a DoLS Register summarizing all residents under DoLS, their authorisation periods, conditions, and RPR details, so management can oversee compliance at a glance.

Least Restrictive Practice and Human Rights

{{org_field_name}} is committed to minimizing the use of restrictions in our care. The concept of “least restrictive practice” means that when care staff plan interventions or support for a resident, we choose the option that interferes the least with the person’s freedom and rights, while still keeping them safe and well. This approach is rooted in both the MCA’s 5th principle and human rights law. In practice:

• Staff are trained to proactively identify less restrictive alternatives. For example, rather than using a bedside rail (physical restraint) for someone at risk of falls, can we use a low bed and a crash mat? Instead of a locked door, can a monitoring device or supervised walks be used to allow some freedom of movement?
• Individualized risk assessments are key. We do not implement “one size fits all” rules. Any restriction (like a lap belt in wheelchair, or limits on accessing the community) must be justified by a specific assessed risk for that individual and be proportionate. We regularly review these risk assessments to see if restrictions can be reduced or removed.
• Restraint (physical, chemical, or otherwise) is only used as a last resort when necessary to prevent harm, and never for staff convenience or as punishment. Any use of restraint must comply with MCA section 6 – it must be in connection with a best interests act, necessary to prevent harm, and proportionate to the likelihood and seriousness of that harm. Unnecessary restraint or excessive restriction can constitute abuse and will not be tolerated.
• We respect human rights considerations in every decision. Article 5 (Right to Liberty) requires that we do not deprive someone of liberty unlawfully or arbitrarily – hence our strict adherence to DoLS process for any necessary deprivation. Article 8 (Right to Private and Family Life) means we try to support residents’ relationships and personal life – e.g., avoiding undue restrictions on visiting, phone calls, or choice of activities. Even when someone lacks capacity, they do not lose their human rights. Staff will weigh the impact on the person’s rights for any action: for instance, limiting a resident’s contact with others would need strong justification and likely involve a best interests meeting (perhaps in a safeguarding context).
• Dignity and autonomy: We foster an environment where residents are given as much autonomy as possible. Even if a person lacks capacity in some areas, we enable them to make day-to-day choices (clothes, food, activities) and take reasonable risks in line with a normal life. A restriction should never be imposed just because “that’s the way we do things” – it must be genuinely necessary for the person’s welfare.

By emphasizing least restrictive practice, we not only comply with the law but also ensure a better quality of life for our residents. All staff are expected to question and report if they feel a care practice is overly restrictive or not in a person’s best interests. The management will support a culture of reflection and improvement in this area.

Staff Training and Responsibilities

All employees at {{org_field_name}} must understand their responsibilities under the Mental Capacity Act and DoLS framework. To this end, we have the following training and competency measures in place:

• Induction Training: Every new staff member (including agency staff on long-term placement) receives training on the Mental Capacity Act 2005 and DoLS during their induction. This covers the five principles, how to assess capacity, what constitutes a deprivation of liberty, and our internal procedures. They also receive a copy or summary of this policy for reference.
• Ongoing Training: We provide regular refresher training at least annually on MCA and DoLS for all care staff and managers. This may be through e-learning modules, face-to-face workshops, or toolbox talks. Topics include scenario-based learning (e.g. case studies of best interest decisions, applying for a DoLS), updates on legislation (especially in anticipation of LPS), and reinforcement of key skills like communication techniques to support decision-making.
• Specialist Training: Senior staff such as Registered Nurses or Team Leaders may receive advanced training, for example in leading best interests meetings, completing capacity assessments formally, or the legal report-writing needed for DoLS applications. The Registered Manager and any other staff who coordinate DoLS will stay updated via local authority briefings or forums.
• Competency Assessment: We assess staff understanding in supervision and appraisals. For example, supervisors might ask staff to describe the MCA principles or to explain how they would respond if a resident refuses care. We also audit care records to ensure capacity assessments and best interests decisions are being done and recorded correctly, providing feedback or additional training where gaps are identified.
• Training Records: The Registered Manager ({{org_field_registered_manager_first_name}} {{org_field_registered_manager_last_name}}) ensures that training attendance is recorded and maintained. The manager will not allow staff to work unsupervised in care roles unless they have received basic MCA/DoLS training or are closely mentored by someone who has.

Staff responsibilities: Every member of staff has a duty to uphold this policy in practice:

• Care Staff (Care Assistants, Support Workers): Frontline staff should apply MCA principles in daily care – always seek consent for care tasks, offer choices, and involve residents in decisions. They should promptly report to a senior if they suspect a resident’s capacity has changed or if they believe a resident is being restricted in a way that might need DoLS authorisation. They must document any instances where a resident cannot consent and how they ensured the care was still delivered in the person’s best interests.
• Nursing Staff: In addition to the above, nurses may perform formal mental capacity assessments for medical or treatment decisions and should liaise with doctors. They help ensure care plans have evidence of capacity considerations. Nurses might also be involved in urgent decisions (like consenting to treatment) and must know when an IMCA or best interests meeting is required.
• Senior Carers/Team Leaders: Often will lead or coordinate assessments and best interest discussions for routine but significant decisions (e.g., managing finances if on behalf of resident, consenting to photographs, etc.). They should mentor junior staff in applying the MCA.
• Registered Manager/Management: The Registered Manager has overall responsibility for implementing this policy and ensuring compliance. This includes: keeping this policy up to date with legal changes; overseeing all DoLS applications and acting as the point of contact with the local authority DoLS office; ensuring notifications to CQC are made; monitoring that care plans and documentation meet MCA/DoLS standards; addressing any concerns or incidents where MCA or DoLS were not followed properly; and fostering a human-rights centered culture in the home. The Registered Manager also ensures any CQC inspections are provided with evidence of our compliance (training records, examples of capacity assessments, etc.).
• Ancillary and Support Staff (e.g. Activities coordinators, Domestic staff): All staff, even those not providing personal care, receive basic awareness so they understand that residents should be treated as having capacity in their interactions (e.g. asking a resident’s consent before cleaning their room or involving them in activities). They are instructed to report any concerns if, for example, they notice a resident being restrained or locked in an area.

Ultimately, every staff member is accountable for respecting residents’ capacity and rights. Failure to adhere to the MCA and this policy could lead to disciplinary action and also has potential legal consequences for the individual and the organisation. We therefore stress the importance of raising questions and seeking guidance – if unsure about any aspect of capacity or DoLS, staff should consult a senior or the Registered Manager rather than make assumptions.

CQC Compliance and Key Lines of Enquiry

Our approach to mental capacity and DoLS is aligned with the Care Quality Commission (CQC) regulations and inspection criteria. CQC inspectors will look for evidence that we obtain valid consent or act in accordance with the MCA for people who lack consent, under the Key Lines of Enquiry (KLOEs). In particular:

• Effective (E1): Are people’s needs assessed and care delivered in line with current standards and legislation? We demonstrate this by following the MCA 2005 and DoLS Code of Practice in planning and delivering care. Care plans reflect individual decision-making needs and legal authorisations in place.
• Effective (E2): Do staff have the skills, knowledge and experience to deliver effective care? Our training on MCA/DoLS and the competency checks we do show that staff are knowledgeable about supporting people who may lack capacity. We keep records of training and scenarios of how staff have handled consent and best interest decisions, which can be shared during inspection.
• Effective (E7): Is consent to care and treatment always sought in line with legislation and guidance? This is the core KLOE regarding MCA compliance. Inspectors will expect to see that we ask for consent for everyday care when people can give it, and when they cannot, that we have proper capacity assessments and best interests documentation. They will also check that any DoLS in place are lawful and correctly managed. By adhering to this policy, we ensure we meet E7 – for example, care records will not show unlawful restraints or deprivations without authorisation, and staff will be able to answer questions about how they gain consent and involve advocates.

Other relevant regulations and guidance include:

• CQC Fundamental Standards – Regulation 11 (Need for Consent): We must obtain consent for care/treatment or document why we acted without consent in line with MCA. This policy supports compliance with Reg 11 by outlining how to assess capacity and proceed lawfully.
• CQC Notification requirements: As noted, we comply with Reg 18 by notifying DoLS outcomes to CQC.
• Care Act 2014: We work with local authorities under safeguarding duties, and the principles of “Making Safeguarding Personal” align with empowering individuals – consistent with MCA principle of participation.
• Human Rights Act 1998: As previously mentioned, we actively uphold rights under HRA (Articles 5, 8, etc.), which CQC also expects providers to respect as part of delivering safe and caring services.
• Mental Capacity (Amendment) Act 2019: Although not in force yet, this is noted as upcoming legislation for LPS (see next section) and we stay aware of its implications.

All staff should be aware that CQC can ask them questions about how we implement the MCA. For instance, CQC may ask a carer: “How do you obtain consent from residents? What do you do if someone can’t give consent?” or “Can you give an example of a best interest decision you were involved in?” Staff are expected to answer in line with our training – e.g. describing the presumption of capacity, involving family, documenting decisions, etc. Likewise, an inspector might ask about DoLS: “How would you recognize if a person might be deprived of liberty?” or “What do you do if that happens?” Staff should mention our procedure of informing the manager and applying to the local authority. By following this policy and our training, staff will be prepared to demonstrate compliance.

We also ensure that our internal audits and management reviews include checking MCA/DoLS compliance, so that any shortfalls are corrected promptly before they become a concern in an inspection. Our goal is not just to meet CQC requirements but to truly embody the principles of the MCA in the care we give.

Preparing for Liberty Protection Safeguards (LPS)

The Liberty Protection Safeguards (LPS) will be the new framework replacing DoLS, introduced by the Mental Capacity (Amendment) Act 2019. Although LPS implementation has been delayed at the national level (currently projected to be beyond 2024 per government announcements), {{org_field_name}} is proactively preparing for this change to ensure a smooth transition and continuous compliance. Key points about LPS and our preparation:

• Broader Scope of LPS: Unlike DoLS which only applies to care homes and hospitals for those aged 18+, LPS will cover people 16 years and older and in all settings, including care homes, hospitals, supported living, and even a person’s own home. This means if any of our residents are 16-17 (or in future if we care for younger adults) or if we are involved in supporting someone in other settings, LPS could apply. We are reviewing our admission and care planning processes to identify any adjustments needed for including 16-17 year olds under safeguards.
• Responsible Bodies: Under LPS, the role of authorising a deprivation of liberty will not solely lie with local authorities. Depending on where the person is and who is funding or arranging care, the Responsible Body could be the local authority or an NHS body (such as an Integrated Care Board or NHS Trust). For care home residents, often the local authority will still be responsible (especially if the placement is arranged or funded by them), but if a resident is under NHS continuing healthcare in our home, the NHS may authorise. We will keep clear records of who the funders/responsible bodies are for each resident to direct LPS requests appropriately.
• Streamlined Process: LPS is intended to be more streamlined and put the person at the center of the process. It will likely involve assessments similar to DoLS but with some differences (e.g. no separate Best Interests Assessor role; instead there will be “Approved Mental Capacity Professionals” for complex cases). We anticipate that some authorisation processes may happen with our involvement in-house. {{org_field_name}} will adapt our procedures once the Code of Practice for LPS is finalized – we have already obtained draft guidance and are incorporating anticipated changes into training.
• Training for LPS: We are ensuring that our key staff (especially the Registered Manager, deputies, and any designated MCA/DoLS leads) stay informed about LPS developments. They have attended webinars and read available briefings on LPS. Once an implementation timeline is confirmed, we will roll out a comprehensive LPS training module to all staff. This will highlight differences, such as new terminology (e.g., “LPS authorisation” instead of DoLS, “Responsible Body” instead of Supervisory Body), and reinforce the continued importance of consent, capacity assessment, and least restrictive care.
• Policy Update: This policy will be updated to an MCA and LPS Policy when LPS comes into force. Preparatory steps include reviewing our documentation (forms for capacity assessments and best interests) to ensure they align with LPS requirements. For example, LPS may require consultation records and assessments to be documented in specific ways, and we will modify our forms accordingly. We will also include procedures for making LPS authorisation requests to the appropriate bodies and how to handle renewals, as LPS will allow longer authorisations in some cases and portability across settings (e.g., an authorisation could cover moves between care home and hospital without a fresh application).
• Interim Period: Until LPS is implemented, DoLS remains in full effect. We continue to apply for DoLS and follow existing law. We recognize that the delay in LPS means the current challenges with DoLS (backlogs, etc.) persist, but we remain committed to protecting our residents’ rights through the tools available. In the interim, our preparation ensures that once LPS is enacted, we will not have a gap in protections or compliance.
• Communication: We will communicate with residents (where appropriate) and relatives about the upcoming LPS changes as we get clarity from the government. Transparency is important – for families used to the term DoLS, we will explain what LPS means for their loved one in plain language to avoid confusion. Any existing DoLS authorisations will, according to plans, transition under LPS, and we will guide families through that process.

In summary, {{org_field_name}} is staying ahead of the curve regarding LPS. Our ethos remains the same: whether under DoLS or LPS, the focus is on safeguarding the rights of individuals who lack capacity and ensuring any restrictions on their liberty are lawful, necessary, and in their best interests. We will update all staff and this document when LPS goes live, and in the meantime, our preparation efforts are laying the groundwork for compliance with the new system.

Policy Review and Further Information

This policy will be reviewed at least annually or sooner if there are changes in legislation or guidance (for example, the implementation of LPS or updates to the MCA Code of Practice). The Registered Manager {{org_field_registered_manager_first_name}} {{org_field_registered_manager_last_name}} is responsible for reviewing the policy, consulting up-to-date legal resources, and approving any changes. All revisions will be communicated to staff and training provided if necessary to implement new procedures.

For any questions about this policy or for guidance on specific cases, staff should contact the Registered Manager. Additional resources can be found in the MCA Code of Practice, the DoLS Code of Practice, and guidance from the CQC and Social Care Institute for Excellence (SCIE). We encourage staff to be familiar with these and to seek out information – an informed team is key to protecting our residents.

Contact Information:

• Registered Manager: {{org_field_registered_manager_first_name}} {{org_field_registered_manager_middle_name}} {{org_field_registered_manager_last_name}}
• Phone: {{org_field_phone_no}}
• Email: {{org_field_email}}
• Website: {{org_field_website}}

By following this policy, {{org_field_name}} ensures that all staff empower and protect those residents who may lack mental capacity, while upholding the highest standards of care, ethical practice, and legal compliance. Our commitment is to treat residents with respect and compassion, making their rights and best interests the center of everything we do.

Sources:

• Mental Capacity Act 2005 and MCA Code of Practice
• Mental Capacity (Amendment) Act 2019 (Liberty Protection Safeguards) – Parliament update
• Deprivation of Liberty Safeguards (DoLS) Code of Practice and SCIE Guidance
• CQC Guidance for Providers on the Mental Capacity Act and CQC State of Care Report excerpts
• Care Quality Commission Key Lines of Enquiry (Effective domain)
• Human Rights Act 1998 (Articles 5 and 8) considerations in care settings.

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