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Mental Capacity Act Implementation Policy

1. Purpose

The purpose of this policy is to ensure that {{org_field_name}} fully complies with the Mental Capacity Act 2005 (MCA) in all aspects of care and support provided to service users. The MCA is a legal framework designed to empower individuals who may lack capacity to make decisions, ensuring their rights, dignity, and autonomy are protected while enabling appropriate decision-making when necessary.

This policy outlines how {{org_field_name}} ensures that:

• Service users are supported to make their own decisions wherever possible.
• Where individuals lack capacity, decisions are made in their best interests.
• Staff understand their responsibilities under the MCA, ensuring compliance with legal, ethical, and regulatory requirements.
• Records and documentation are maintained to demonstrate adherence to the MCA.

This policy must be read and implemented in accordance with:

• the Mental Capacity Act 2005;
• the Mental Capacity Act 2005 Code of Practice;
• the supplementary Mental Capacity Act 2005 Deprivation of Liberty Safeguards Code of Practice, where applicable;
• the Human Rights Act 1998, including Article 5, the right to liberty and security, and Article 8, the right to respect for private and family life;
• the Equality Act 2010;
• the Social Services and Well-being (Wales) Act 2014 and applicable Welsh statutory codes of practice;
• the Regulation and Inspection of Social Care (Wales) Act 2016;
• the Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017, as amended;
• statutory guidance issued by the Welsh Ministers under section 29 of the Regulation and Inspection of Social Care (Wales) Act 2016;
• applicable decisions of the Court of Protection, the High Court, appellate courts and the European Court of Human Rights; and
• current guidance, inspection frameworks and regulatory communications issued by Care Inspectorate Wales.

Particular regard must be given to Regulations 6, 8, 12, 14 to 18, 21, 23 to 29, 31, 34, 36, 38, 59 and 80 of the Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017, as amended. These regulations address governance, assessment, personal planning, consent and participation, safeguarding, restrictive practices, deprivation of liberty, staff competence, records and quality oversight.

The organisation will have regard to statutory guidance issued by the Welsh Ministers under section 29 of the Regulation and Inspection of Social Care (Wales) Act 2016 and to current guidance and regulatory communications issued by Care Inspectorate Wales. Where legislation, statutory guidance or binding case law changes, practice must be reviewed promptly and must not wait until the policy’s next scheduled annual review.

The Mental Capacity (Amendment) Act 2019 provides for a future Liberty Protection Safeguards framework. However, the Liberty Protection Safeguards have not been brought fully into force and have not replaced the existing Deprivation of Liberty Safeguards. Until legislation is commenced and corresponding statutory guidance is issued, staff must continue to follow the current Mental Capacity Act 2005, Court of Protection and Deprivation of Liberty Safeguards arrangements described in this policy.

2. Scope

This policy applies to:

• All persons working for or on behalf of {{org_field_name}}, including employees, workers, agency staff, bank staff, contractors, volunteers, managers, the Responsible Individual and any professional undertaking delegated or commissioned work.
• All people aged 16 or over receiving care and support from {{org_field_name}} are within the scope of this policy. The Mental Capacity Act 2005 applies to decision-making for people aged 16 and over, subject to the provisions of the Act.
• Families, advocates, and external healthcare professionals involved in decision-making processes.

Where the person is aged 16 or 17, staff must also consider:

• the Children Act 1989 and other applicable children’s legislation;
• the nature and limits of parental responsibility;
• whether the young person has capacity to make the particular decision;
• whether a person with parental responsibility has lawful authority in relation to that particular decision;
• whether the proposed act or arrangement is within the scope of the Mental Capacity Act 2005;
• the young person’s Article 5 and Article 8 rights; and
• whether an application to the appropriate court is required.

Parental responsibility must not be treated as providing automatic or unlimited authority to consent to all care arrangements, restrictions or deprivations of liberty on behalf of a 16- or 17-year-old. Advice must be obtained from the placing authority, health professional, safeguarding lead or legal adviser where the legal basis is uncertain.

This policy applies to every decision to which the Mental Capacity Act 2005 is relevant, including decisions about personal care, medication, access to the home, nutrition and hydration, finances, communication, contact with other people, use of equipment, assistive technology, residence, care arrangements, sharing information and restrictive practices, emergency care, treatment escalation, end-of-life care, resuscitation decisions, covert medication, use of monitoring devices, door sensors, location technology, sharing information with relatives or professionals, photographs and recordings, access to social media, intimate relationships, tenancy-related decisions and decisions about accepting or refusing care.

A diagnosis of dementia, learning disability, mental illness, acquired brain injury, autism, delirium or any other condition does not, by itself, establish that a person lacks capacity. Capacity must be assessed in relation to the particular decision and at the time the decision needs to be made.

This policy covers:

• identifying when a capacity assessment may be required;
• supporting people to make their own decisions;
• assessing capacity for a specific decision at a specific time;
• obtaining and recording valid consent;
• responding to refusal of care;
• making and recording best-interests decisions;
• identifying the lawful decision-maker;
• Lasting Powers of Attorney, court-appointed deputies and Court of Protection orders;
• advance statements and Advance Decisions to Refuse Treatment;
• Independent Mental Capacity Advocate referrals;
• acts in connection with care or treatment under sections 5 and 6 of the Mental Capacity Act 2005;
• restraint, restrictive practice and least-restrictive care;
• deprivation of liberty in a person’s own home or another community setting;
• the Deprivation of Liberty Safeguards where they lawfully apply;
• emergency decision-making;
• safeguarding concerns involving capacity, coercion or undue influence;
• record keeping, staff competence, audit and governance.

3. Policy Statement

{{org_field_name}} is committed to ensuring that all individuals receiving care are treated with dignity, respect, and autonomy. The MCA underpins our approach to person-centred care, ensuring that service users:

• Have the right to make their own decisions, even if those decisions seem unwise.
• Receive the necessary support to make informed choices.
• Are supported to take positive and proportionate risks where they have capacity to decide, even where the decision may expose them to some risk. Where the person lacks capacity for the particular decision, any act or decision on their behalf must be in their best interests and must be the option that is least restrictive of their rights and freedom of action.
• Staff must not treat disagreement, refusal, unusual behaviour, communication difficulty, an unwise decision or a diagnosis as evidence that a person lacks capacity.
• Consent must be obtained before care or support is provided unless there is a lawful basis for acting without the person’s consent. A signed service agreement, general consent form or family agreement does not replace decision-specific consent.
• Consent is valid only where it is given voluntarily by a person who has capacity to make the particular decision and who has received sufficient, accurate and accessible information about the nature, purpose, benefits, material risks, alternatives and reasonably foreseeable consequences of accepting or refusing the proposed care or support.

• A person who has capacity may refuse or withdraw consent at any time, including during the delivery of care. Staff must stop the proposed intervention unless immediate action is required to prevent serious harm and there is a clear lawful basis for acting.
• Refusal of care must not automatically be treated as lack of capacity, non-compliance, challenging behaviour or self-neglect. Staff must explore the reason for the refusal, offer information and alternatives, consider communication needs, assess any immediate risk and report significant or repeated refusals in accordance with the person’s personal plan and escalation procedures.
• No family member, next of kin or informal carer has automatic legal authority to make decisions for an adult. Authority must arise from the person’s valid consent, a registered Lasting Power of Attorney, a valid court-appointed deputyship or another lawful order.

All staff at {{org_field_name}} are required to understand, implement, and adhere to the MCA to safeguard the rights of service users and ensure legal compliance.

4. Implementation of the Mental Capacity Act 2005

4.1 The Five Key Principles of the MCA

1. Presumption of capacity: A person aged 16 or over must be assumed to have capacity to make the particular decision unless it is established, on the balance of probabilities, that they lack capacity for that decision at the relevant time.

2. Support to make the decision: A person must not be treated as unable to make a decision unless all practicable steps to help them make the decision have been taken without success. The support offered and the outcome must be recorded.

3. Right to make an unwise decision: A person must not be treated as lacking capacity merely because they make a decision that staff, relatives or professionals consider unwise, risky, unusual or contrary to advice.

4. Best interests: Any act done or decision made for or on behalf of a person who lacks capacity must be done or made in that person’s best interests in accordance with section 4 of the Mental Capacity Act 2005.

5. Least-restrictive intervention: Before an act is carried out or a decision is made, consideration must be given to whether the purpose can be achieved as effectively in a way that is less restrictive of the person’s rights and freedom of action.

4.2 Assessing Mental Capacity

Capacity must be assessed only where there is a reasonable and recorded basis for questioning the person’s capacity to make a particular decision. The assessment must be specific to the decision, specific to the time at which it must be made and proportionate to the seriousness and consequences of that decision. Capacity must not be assessed globally.

The assessment must apply the statutory two-stage test:

• Stage 1 – impairment or disturbance: Is there an impairment of, or disturbance in, the functioning of the person’s mind or brain? The impairment may be permanent or temporary.
• Stage 2 – inability to make the decision because of the impairment or disturbance: Is the person unable to make the particular decision because of that impairment or disturbance?

Both stages of the test must be evidenced. A person must not be found to lack capacity merely because staff cannot identify an immediately obvious diagnosis. However, there must be evidence of an impairment of, or disturbance in, the functioning of the mind or brain and evidence that the impairment or disturbance causes the person’s inability to make the particular decision.

A person is unable to make the decision only where they cannot do one or more of the following:

• understand the information relevant to the decision;
• retain that information for long enough to make the decision;
• use or weigh that information as part of the decision-making process; or
• communicate the decision by any means.

The information relevant to a decision includes information about the reasonably foreseeable consequences of:

• deciding one way;
• deciding another way; and
• failing to make the decision.

The assessor must identify and record the information that is genuinely relevant to the particular decision. A person must not be required to understand information that is irrelevant, excessively technical or greater than would reasonably be required of a person without an impairment.

There must be a clear causal connection between the impairment or disturbance and the person’s inability to make the decision. Difficulty with one part of the test does not establish lack of capacity unless it means the person is unable to make the particular decision because of the impairment or disturbance.

The assessor must not determine capacity by reference to whether the person agrees with professional advice or reaches the outcome preferred by staff, relatives or professionals. The assessment concerns the person’s decision-making ability, not the perceived wisdom of the final decision.

The person does not need to retain information for longer than is necessary to make the decision. The use of simple language, repetition, visual materials, communication aids or other support does not invalidate the decision.

A finding that a person cannot communicate a decision must be made only after all practicable communication methods have been attempted. This may include speech, writing, signing, gesture, eye movement, communication boards, digital communication, objects of reference, interpreters and specialist speech and language support. A person must not be assessed as lacking capacity solely because they cannot speak, read or write.

4.2.1 Who undertakes the assessment

The person proposing to carry out the act or make the decision is normally responsible for deciding whether the person has capacity for that decision. Care workers may make and record routine assessments relating to day-to-day care only where they have been trained, assessed as competent and authorised to do so. Complex, serious, disputed or high-risk decisions must be referred to the Registered Manager and to an appropriate health or social care professional. Legal advice must be considered where there is serious disagreement, uncertainty about legal authority or a potential deprivation of liberty.

The person assessing capacity may not always be the person who has legal responsibility for making the subsequent best-interests decision. The record must identify:

• who completed the capacity assessment;
• who is the decision-maker for the proposed act or decision;
• the legal authority under which the decision-maker is acting; and
• which other professionals or representatives must be consulted.

A care worker must not make a decision outside the scope of their role, training or authority. For example, a care worker may assess and respond to capacity relating to routine personal care at the time it is offered, but must not independently determine complex medical treatment, residence, serious financial, safeguarding or deprivation-of-liberty matters.

4.2.2 Timing and fluctuating capacity

Capacity may fluctuate or improve. Where a decision can reasonably wait, it must be delayed until the person is more likely to be able to decide. The assessment must consider the effect of pain, infection, medication, fatigue, distress, intoxication, delirium, communication barriers and the time or environment in which the decision is presented. A previous assessment must not be applied automatically to a later or different decision.

Where capacity fluctuates, the personal plan must describe:

• how the person presents when they are more or less able to decide;
• the best time, place and method for discussing decisions;
• known triggers or reversible causes;
• the decisions that can safely be delayed;
• the circumstances requiring reassessment; and
• the action staff must take where an urgent decision cannot wait.

Staff must not rely solely on a historic diagnosis, historic capacity assessment or general statement that the person has “capacity” or “lacks capacity”.

4.2.3 Recording the assessment

The person asserting that the individual lacks capacity must be able to demonstrate, on the balance of probabilities, that the statutory test is met. Where the evidence is evenly balanced or insufficient, the presumption of capacity remains.

The record must state:

• the exact decision under consideration;
• why capacity was questioned;
• the date, time, location and assessor;
• the relevant information explained to the person;
• all practicable support and reasonable adjustments provided;
• the person’s responses and method of communication;
• the evidence concerning each part of the functional test;
• the identified impairment or disturbance;
• how that impairment or disturbance caused the inability to decide;
• the conclusion and reasons;
• whether reassessment is required and when;
• whether professional, advocacy or legal advice was sought.

• the person’s own account of the decision and their reasoning;
• the reasonably foreseeable consequences that were explained;
• whether the person could understand, retain, use or weigh each element of the relevant information;
• evidence that apparent disagreement or an unwise outcome was not treated as incapacity;
• whether coercion, undue influence, fear, communication barriers or safeguarding concerns were considered;
• the views of anybody consulted, where consultation was lawful and appropriate;
• the duration or limits of the assessment;
• the identity of the person responsible for the resulting decision;
• any disagreement with the assessment and how it will be resolved.

4.3 Supporting Individuals to Make Decisions

Before concluding that a person lacks capacity, staff must take all practical steps to support them in making their own decision.

Before concluding that a person is unable to make a decision, staff must take all practicable steps to support decision-making. Depending on the person and the decision, this includes:

• identifying the person’s preferred language and communication method;
• providing information in Welsh where this is the person’s language of need or choice;
• using plain language, Easy Read information, pictures, objects, demonstrations, audio, video, signing or assistive technology;
• arranging a qualified interpreter or communication professional where required;
• avoiding reliance on a relative as an interpreter for complex, sensitive or disputed decisions;
• treating pain, infection, dehydration, constipation, hypoxia, delirium, anxiety or other reversible causes where appropriate;
• choosing a familiar, quiet and accessible environment;
• offering the discussion at the time of day when the person is best able to participate;
• allowing sufficient time and more than one discussion where appropriate;
• presenting one issue at a time;
• explaining reasonably foreseeable consequences and alternatives;
• involving a person whom the individual trusts, where the individual consents or where lawful and appropriate;
• checking understanding without requiring the individual to repeat information in a particular form;
• considering whether the decision can be delayed;
• obtaining specialist speech and language, sensory, psychological or clinical advice where required.

The support offered, the person’s response and the reason any further step was not practicable must be recorded.

4.4 Best-interests decision-making

A best-interests decision may be made only after it has been established that the person lacks capacity to make the particular decision at the relevant time. A best-interests decision must not be used merely because a person makes an unwise decision, refuses care or disagrees with staff.

The decision-maker must consider all relevant circumstances and must:

• not make the decision merely on the basis of the person’s age, appearance, condition, diagnosis or behaviour;
• encourage and support the person to participate as fully as possible;
• consider whether the person is likely to regain capacity and, if so, whether the decision can wait;
• identify the available options, including doing nothing or delaying the decision;
• consider the person’s past and present wishes and feelings, including any written statement made when they had capacity;
• consider the beliefs and values that would be likely to influence the person’s decision;
• consider any other factor the person would be likely to consider;
• consult anyone named by the person as someone to be consulted;
• consult anyone engaged in caring for the person or interested in their welfare, where appropriate;
• consult any attorney acting under a registered Lasting Power of Attorney or any court-appointed deputy whose authority covers the decision;
• involve an Independent Mental Capacity Advocate where the statutory criteria are met;
• consider the person’s rights under the Human Rights Act 1998;
• select the option that is in the person’s best interests and is the least restrictive of their rights and freedom of action.

Where the decision relates to life-sustaining treatment, the decision-maker must not be motivated by a desire to bring about the person’s death.

A best-interests decision must be individual and evidence-based. It must not be based solely on convenience, staffing arrangements, organisational policy, cost, risk avoidance or the wishes of relatives or professionals.

The decision record must contain:

• the exact decision required;
• the capacity assessment;
• the identity and authority of the decision-maker;
• the urgency and date of the decision;
• the options considered;
• the benefits, burdens and reasonably foreseeable consequences of each option;
• the person’s past and present wishes, feelings, beliefs and values;
• how the person participated;
• the people consulted and their views;
• any disagreement and how it was addressed;
• whether an Independent Mental Capacity Advocate was required;
• the least-restrictive alternatives considered;
• the final decision and reasons;
• the implementation arrangements;
• the review date and triggers for earlier review.

Where there is unresolved disagreement about a serious decision, staff must escalate the matter to the Registered Manager. Mediation, safeguarding procedures, professional advice, legal advice or an application to the Court of Protection must be considered. The organisation must not treat relatives, attorneys, deputies or professionals as having authority beyond the legal scope of their role.

4.4.1 Acts in connection with care or treatment

Where a person lacks capacity to consent to an act in connection with their care or treatment, sections 5 and 6 of the Mental Capacity Act 2005 may provide protection from liability to the person carrying out the act, provided that:

• reasonable steps have been taken to establish whether the person lacks capacity;
• the person carrying out the act reasonably believes that the person lacks capacity in relation to the matter;
• the person carrying out the act reasonably believes that the act is in the person’s best interests;
• any restraint is necessary to prevent harm to the person;
• any restraint is proportionate to the likelihood and seriousness of that harm; and
• the act does not amount to an unauthorised deprivation of liberty.

Sections 5 and 6 do not give staff general authority to make decisions on behalf of a person, override a valid Advance Decision to Refuse Treatment, disregard an attorney or deputy with relevant authority, or impose an unauthorised deprivation of liberty.

The more serious, invasive, restrictive, disputed or long-lasting the act, the greater the need for a formal capacity assessment, documented best-interests process, professional involvement and legal authority.

4.5 Lasting Powers of Attorney, deputies, advance statements and Advance Decisions to Refuse Treatment

4.5.1 Lasting Powers of Attorney

A Lasting Power of Attorney is a legal instrument through which a person, known as the donor, appoints one or more attorneys to make specified decisions.

Staff must:

• ask whether a registered Lasting Power of Attorney exists;
• establish whether it relates to health and welfare or property and financial affairs;
• inspect an original, certified copy or valid Office of the Public Guardian digital summary where available;
• confirm that it is registered;
• record the identity and contact details of each attorney;
• check whether attorneys act jointly, jointly and severally, or jointly for specified decisions;
• identify any instructions, preferences or restrictions in the document;
• confirm that the authority covers the particular decision;
• record any known revocation, disclaimer, replacement or safeguarding concern.

An attorney under a health and welfare Lasting Power of Attorney may generally make the relevant decision only when the donor lacks capacity to make that decision. An attorney under a property and financial affairs Lasting Power of Attorney may be authorised to act while the donor has capacity, depending on the terms of the instrument.

An attorney may consent to or refuse life-sustaining treatment only where the registered health and welfare Lasting Power of Attorney expressly grants that authority.

Attorneys must act in accordance with the Mental Capacity Act 2005, the Code of Practice and the person’s best interests. Staff must report concerns about an attorney’s conduct to the Registered Manager and consider safeguarding action and referral to the Office of the Public Guardian.

4.5.2 Court-appointed deputies and court orders

Where a deputy has been appointed by the Court of Protection, staff must obtain and check the court order to establish the deputy’s exact authority. A deputy must not be treated as having general authority outside the terms of the order.

Decisions reserved to the court or not covered by a deputy’s order must be referred to the appropriate decision-maker and legal advice obtained where necessary.

4.5.3 Advance statements

An advance statement records a person’s wishes, feelings, beliefs, values or preferences about future care. It is not legally binding in the same way as a valid and applicable Advance Decision to Refuse Treatment, but it must be considered as part of any best-interests decision.

4.5.4 Advance Decisions to Refuse Treatment

An Advance Decision to Refuse Treatment applies only to a refusal of specified medical treatment. It does not authorise a demand for treatment and does not apply to ordinary care that is not medical treatment.

Staff must immediately refer any reported Advance Decision to the relevant healthcare professional and Registered Manager. The healthcare decision-maker must establish whether it is valid and applicable to the circumstances.

For an Advance Decision refusing life-sustaining treatment to be legally binding, it must:

• have been made by a person aged 18 or over who had capacity at the time;
• be in writing;
• be signed by the person, or by another person in the individual’s presence and at their direction;
• be witnessed;
• be signed by the witness; and
• contain a clear statement that the decision is to apply even if life is at risk.

Staff must not disregard a valid and applicable Advance Decision. Where validity or applicability is uncertain, urgent clinical and legal advice must be obtained. Necessary care must continue while the issue is resolved, provided it does not conflict with a decision that is clearly valid and applicable.

Records must distinguish between:

• an Advance Decision to Refuse Treatment;
• an advance statement;
• a do-not-attempt-cardiopulmonary-resuscitation recommendation;
• a treatment escalation plan; and
• a general expression of preference.

4.5.5 Independent Mental Capacity Advocate

An Independent Mental Capacity Advocate must be instructed by the responsible NHS body or local authority where the statutory criteria are met, including specified serious medical treatment or long-term accommodation decisions where the person lacks capacity and has no appropriate unpaid person who can be consulted.

An Independent Mental Capacity Advocate may also be instructed in certain:

• safeguarding cases; and
• reviews of accommodation arrangements.

{{org_field_name}} may not always be the body legally responsible for making the referral, but staff must promptly notify the relevant local authority, NHS body or decision-maker where an Independent Mental Capacity Advocate may be required.

The person must still be supported to participate. The advocate’s role does not replace the person’s own involvement and does not make the advocate the decision-maker.

The care record must show:

• whether an Independent Mental Capacity Advocate was considered;
• the reason a referral was or was not required;
• the body asked to make the referral;
• the date of referral;
• the advocate’s report or recommendations; and
• how the decision-maker considered those recommendations.

4.6 Deprivation of liberty in domiciliary support services

No person may be deprived of their liberty for the purpose of receiving care and support without lawful authority.

A deprivation of liberty may arise where, considering the person’s actual care arrangements as a whole:

• the person is subject to continuous supervision and control; and
• the person is not free to leave.

The assessment is based on the practical reality of the arrangements and their intensity, frequency, duration and effect. The person’s compliance, lack of objection, apparent contentment, relative comfort, the suitability of the placement or the benevolent purpose of the arrangements does not prevent the arrangements from amounting to a deprivation of liberty.

Restrictions that may contribute to a deprivation of liberty in a domiciliary setting include:

• constant or extensive supervision;
• preventing the person from leaving the home;
• locking doors or controlling access to keys;
• requiring the person to be escorted whenever they leave;
• physical restraint;
• chemical restraint or sedating medication used to control behaviour;
• continuous monitoring, including sensors or location technology;
• controlling contact with other people;
• removing items needed to leave the property;
• preventing the person from moving to another residence;
• repeated return of the person when they attempt to leave;
• a care package that leaves the person unable, in practice, to exercise freedom to leave.

The Deprivation of Liberty Safeguards under Schedule A1 to the Mental Capacity Act 2005 apply only to qualifying people aged 18 or over in hospitals and care homes. They do not provide the authorisation route for a person receiving domiciliary support in their own home, supported living accommodation or another community setting.

Where care arrangements in a person’s own home or a community setting may amount to a deprivation of liberty, staff must:

• immediately report the concern to the Registered Manager;
• ensure the person’s capacity to consent to the relevant care and residence arrangements is assessed;
• review the arrangements and remove any unnecessary restriction;
• consider whether the purpose can be achieved through less-restrictive measures;
• inform the commissioning local authority, health board or other responsible decision-making body;
• request an urgent review of the person’s care and support plan;
• obtain legal advice where required; and
• seek or request an application to the Court of Protection for authorisation where the deprivation cannot be avoided and no other lawful authority applies.

{{org_field_name}} must co-operate fully with the commissioning body and legal process. The provider must not describe an internal risk assessment, best-interests form, family agreement, tenancy agreement, care contract or local authority care plan as itself authorising a deprivation of liberty.

Where the individual is temporarily admitted to a hospital or care home, staff must inform the managing authority of any relevant capacity assessments, restrictions, court orders, attorneys, deputies or existing legal arrangements. The hospital or care home is responsible for considering whether a DoLS authorisation is required while the person is in that setting.

Any authorised deprivation of liberty must be:

• clearly recorded in the personal plan;
• available to staff delivering care;
• implemented only within the scope of the authorisation;
• reviewed when circumstances change;
• monitored for expiry dates, conditions and review requirements;
• supported by access to representation and rights of challenge.

Staff must immediately escalate any concern that restrictions exceed the authority granted by a court order or other lawful arrangement.

4.6.1 Restrictive practices and restraint

Restrictive practice includes any practice that limits a person’s movement, liberty, choice, privacy, access, communication or control over everyday life.

Restrictive practices must not be used:

• as punishment;
• for staff convenience;
• because of insufficient staffing;
• to secure routine compliance;
• as a substitute for assessment, treatment or positive behavioural support;
• solely at the request of a relative;
• without consideration of capacity, consent, necessity, proportionality and legal authority.

Where a person has capacity to consent to a restriction, consent must be voluntary, informed, specific and capable of being withdrawn. Staff must still consider whether the restriction is necessary and proportionate.

Where the person lacks capacity, the restriction must:

• be in the person’s best interests;
• be necessary to prevent harm;
• be proportionate to the likelihood and seriousness of that harm;
• represent the least-restrictive effective option;
• be included in the personal plan and risk assessment;
• be regularly reviewed;
• not amount to an unauthorised deprivation of liberty.

Any incident involving control, restraint or restrictive practice must be recorded within 24 hours in accordance with Regulation 29. The record must include the circumstances, type and duration of restriction, staff involved, reason, injury or distress, de-escalation attempted, capacity and consent considerations, action taken and management review.

Patterns and trends in restrictive practice must be reviewed through management oversight and the quality-of-care review.

4.6.2 Covert medication

Medication must not be administered covertly merely because a person refuses it.

Covert administration may be considered only where:

• the person lacks capacity to decide about the particular medication;
• administration is necessary and in the person’s best interests;
• less-restrictive alternatives have been considered and are unsuitable;
• the prescriber and pharmacist have been involved;
• the decision is made through a properly recorded multidisciplinary best-interests process;
• the method of administration is clinically and pharmaceutically safe;
• any attorney, deputy, representative or advocate is involved as legally appropriate;
• there is no valid and applicable Advance Decision refusing the treatment;
• the decision is time limited and subject to regular review.

Covert medication must be addressed in the person’s medication plan and must comply with the organisation’s Medication Policy. Care workers must not independently decide to hide medication in food or drink.

4.6.3 Emergency situations

In a genuine emergency, staff may provide immediately necessary care or treatment where they reasonably believe that the person lacks capacity in relation to the intervention and that the intervention is in the person’s best interests.

Emergency action must:

• be limited to what is immediately necessary;
• be proportionate to the risk;
• use the least-restrictive available option;
• not continue after the emergency has passed without formal assessment and authority;
• be reported promptly to the Registered Manager and relevant healthcare professional;
• be fully recorded.

Where there is an immediate threat to life or serious injury, staff must contact emergency services. The emergency provisions must not be used to justify planned or continuing restrictions or to avoid obtaining appropriate legal authority.

4.7 Staff Training and Compliance

All staff must complete Mental Capacity Act training during induction, before undertaking unsupervised work involving relevant decisions. Refresher training must be provided at least annually and sooner where there is a change in legislation, guidance, case law, the needs of people using the service, audit findings, incidents, safeguarding concerns or evidence that a member of staff is not applying the policy correctly.

Training covers:

• Understanding the MCA and its legal implications.
• How to conduct a mental capacity assessment.
• Best Interests decision-making.
• Record-keeping and documentation standards.
• Understanding DoLS procedures.

• decision-specific and time-specific capacity assessments;
• valid consent and withdrawal of consent;
• supporting Welsh-language and other communication needs;
• best-interests decision-making and the statutory checklist;
• Lasting Powers of Attorney, deputies and Advance Decisions;
• Independent Mental Capacity Advocate referrals;
• recognising restraint and restrictive practice;
• deprivation of liberty in a person’s own home;
• the difference between DoLS and Court of Protection authorisation;
• responding to refusal of care;
• coercion, undue influence and safeguarding;
• covert medication;
• record keeping and escalation;
• the needs of people aged 16 and 17.

Managers must assess and record staff competence in applying the Mental Capacity Act in practice. Completion of an online course or attendance at training is not, by itself, evidence of competence. Competence must be assessed through supervision, discussion of scenarios, observation of practice, review of records, audit findings and the staff member’s ability to explain when they must seek advice or escalate a concern.

4.8 Record keeping and documentation

Records relating to mental capacity, consent and best interests must be accurate, contemporaneous, decision-specific, legible, attributable and sufficiently detailed to demonstrate the legal basis for the care provided.

Staff must record, where applicable:

• consent to care and any withdrawal of consent;
• refusals of care and action taken;
• the reason capacity was questioned;
• practicable support provided;
• capacity assessments;
• best-interests decisions;
• consultation with relatives, representatives and professionals;
• the identity and authority of attorneys and deputies;
• Advance Decisions and advance statements;
• Independent Mental Capacity Advocate referrals and reports;
• restrictive practices and restraint;
• court orders or other legal authority;
• concerns about possible deprivation of liberty;
• safeguarding concerns involving coercion, exploitation or undue influence;
• reassessment and review dates.

Records must clearly distinguish:

• the person’s own decision;
• a capacity assessment;
• a best-interests decision;
• professional advice;
• a relative’s opinion;
• the authority of an attorney or deputy;
• an order or decision of a court.

Phrases such as “family consented”, “next of kin agreed”, “patient confused”, “has dementia”, “lacks capacity”, “best interests agreed” or “compliant with care” are insufficient unless supported by the required assessment, evidence and legal authority.

Relevant information must be reflected in the personal plan and communicated to staff who need it to provide safe and lawful care. Records must be stored securely, accessed only by authorised persons and retained in accordance with Regulation 59, applicable data-protection legislation and the organisation’s records-management policy.

The Registered Manager must ensure that mental-capacity records are included in routine file audits. Any gap that could result in care being delivered without consent or lawful authority must be treated as a priority action.

4.9 Personal plans and review

Where mental capacity is relevant to the delivery of care, the individual’s personal plan must state:

• the decisions the person can make independently;
• any decisions for which capacity is in question or has been assessed;
• how the person must be supported to decide;
• the person’s preferred communication method and language;
• any fluctuating-capacity indicators;
• the identity and authority of any attorney or deputy;
• any relevant Advance Decision or advance statement;
• any agreed best-interests arrangements;
• any restrictions and their legal basis;
• less-restrictive alternatives;
• escalation arrangements;
• review dates and triggers.

Capacity and best-interests information must be reviewed whenever:

• the personal plan is reviewed;
• the person’s condition or presentation changes;
• the person’s ability to decide may have improved or deteriorated;
• the person objects to or resists care;
• a restriction is introduced or increased;
• medication is changed in a way that may affect cognition;
• there is a safeguarding concern;
• an attorney, deputy or court order changes;
• the care setting or care package changes;
• an authorisation or court order is approaching expiry.

The personal plan must be reviewed at least every three months in accordance with Regulation 16, but decision-specific capacity assessments must be reviewed sooner whenever circumstances require it.

4.10 Safeguarding and mental capacity

A lack of capacity does not remove a person’s right to be heard or protected. Equally, a finding that a person has capacity does not end the organisation’s safeguarding responsibilities.

Staff must raise a safeguarding concern where there is suspected:

• abuse, neglect or improper treatment;
• coercion or controlling behaviour;
• financial exploitation;
• misuse of an attorney or deputy’s authority;
• unlawful restraint;
• unauthorised deprivation of liberty;
• deliberate failure to obtain consent;
• falsification or absence of capacity or best-interests records;
• repeated provision of care contrary to the person’s wishes without lawful authority.

Mental capacity assessments must not be used to transfer responsibility for abuse or neglect to the person experiencing it. Where a capacitous person chooses to remain in a risky situation, staff must respect the decision while providing information, considering risk to other people, documenting the discussion and following safeguarding procedures where statutory criteria are met.

4.11 Disputes, legal advice and the Court of Protection

Disagreement must be addressed promptly and must not be allowed to result in unlawful care or avoidable delay.

The Registered Manager must consider professional or legal advice where:

• there is serious or persistent disagreement about capacity or best interests;
• an attorney, deputy, relative or professional disputes the proposed care;
• the proposed intervention is particularly serious, invasive or irreversible;
• there is uncertainty about an Advance Decision;
• there is uncertainty about the scope of an attorney or deputy’s authority;
• the person objects to significant care arrangements;
• arrangements may amount to a deprivation of liberty;
• the proposed action concerns contact, residence, serious medical treatment, sexual relations, marriage, access to the person or another matter requiring court determination;
• there are allegations of coercion, exploitation or abuse by a decision-maker.

Where the dispute cannot be resolved and the decision requires legal determination, an application to the Court of Protection must be considered by the body or person with responsibility for the decision.

4.12 Monitoring, audit and governance

The Registered Manager must monitor implementation of this policy through:

• audits of consent, capacity and best-interests records;
• review of refusals of care;
• review of restraint and restrictive-practice records;
• review of medication administered covertly;
• monitoring of court orders and expiry or review dates;
• checks of Lasting Power of Attorney and deputy documentation;
• review of safeguarding incidents involving capacity;
• staff supervision and competency assessments;
• feedback from individuals and representatives;
• review of complaints, incidents and near misses.

The Responsible Individual must have oversight of significant risks, patterns, failures and improvement actions. Relevant findings must inform the quality-of-care review required by Regulation 80.

Immediate corrective action must be taken where audit identifies:

• care delivered without valid consent or another lawful basis;
• unsupported declarations that a person lacks capacity;
• incomplete best-interests decisions;
• use of unauthorised restrictions;
• a possible deprivation of liberty without lawful authority;
• staff acting on instructions from a person without legal authority;
• missed reviews or expired legal arrangements.

5. Related Policies

• Safeguarding Adults from Abuse and Improper Treatment Policy (DCW13).
• Restrictive Practices and Physical Interventions Policy (DCW40).
• Confidentiality and Data Protection Policy (DCW34).
• Person-Centred Care Policy (DCW07).

• Admissions and Commencement of Service Policy.
• Assessment and Personal Planning Policy.
• Consent to Care and Treatment Policy.
• Medication Management Policy.
• Covert Medication Procedure.
• Positive Behaviour Support Policy.
• Advocacy Policy.
• Welsh Language and Communication Policy.
• Supporting Individuals to Manage Money Policy.
• Safeguarding Children Policy, where the service supports people aged 16 or 17.
• Records Management and Retention Policy.
• Complaints Policy.
• Duty of Candour Policy.
• Lone Working Policy.
• End-of-Life Care Policy.
• Information Sharing Policy.

6. Policy Review

This policy will be formally reviewed at least annually and sooner where:

• legislation, regulations, statutory guidance or binding case law changes;
• the Welsh Government or Care Inspectorate Wales issues relevant guidance or regulatory communication;
• an inspection, audit, complaint, safeguarding process, incident or court decision identifies a weakness;
• Liberty Protection Safeguards or another replacement authorisation framework is brought into force;
• the organisation changes its statement of purpose, service model or the needs of the people it supports;
• staff demonstrate uncertainty or inconsistent practice.

The Registered Manager is responsible for initiating the review. The Responsible Individual must oversee implementation of significant amendments and assure themselves that the service is operating in accordance with the revised policy.

Changes affecting staff practice must be communicated promptly. Staff must receive additional information, supervision or training before being expected to implement a materially changed procedure.

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