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Mental Capacity Act Implementation Policy

1. Purpose

The purpose of this policy is to ensure that all staff working within {{org_field_name}} understand and comply with the principles and statutory requirements of the Mental Capacity Act 2005 (MCA) when providing care and support. The MCA provides the legal framework for supporting people who may lack capacity to make particular decisions for themselves and for making decisions or acting on their behalf where this is necessary.

{{org_field_name}} will presume that an individual has capacity unless it is established otherwise, will provide all practicable support to enable individuals to make their own decisions and will respect an individual’s right to make a decision that others may consider unwise.

Where an individual lacks capacity to make a specific decision, any act undertaken or decision made on their behalf must be in their best interests and must have regard to whether the intended purpose can be achieved in a way that is less restrictive of the individual’s rights and freedom of action.

This policy also sets out how {{org_field_name}} will comply with the Deprivation of Liberty Safeguards (DoLS), where applicable, and with the requirement under regulation 31 of the Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017, as amended, that an individual must not be deprived of their liberty for the purpose of receiving care and support without lawful authority.

In determining whether care arrangements may amount to a deprivation of liberty, {{org_field_name}} will apply the current legal framework, including relevant case law, statutory guidance and guidance issued by Care Inspectorate Wales (CIW). Where there is reason to believe that an individual may be deprived of their liberty, the appropriate authorisation process must be followed without delay.

2. Scope

This policy applies to all staff, agency workers, volunteers and relevant professionals working at or on behalf of {{org_field_name}}, including the Registered Manager {{org_field_registered_manager_first_name}} {{org_field_registered_manager_last_name}}.

It applies to all aspects of care and support in which an individual’s ability to make a particular decision may be relevant, including assessment, care planning, consent, personal care, healthcare, medication, risk management, use of restrictions, decisions about residence and accommodation, finances and day-to-day choices.

The Mental Capacity Act 2005 applies to people aged 16 and over. Staff must therefore apply the principles and requirements of the MCA when supporting any individual aged 16 or over whose capacity to make a particular decision is in question.

The Deprivation of Liberty Safeguards applicable to hospitals and care homes apply to individuals aged 18 and over. Where a person aged 16 or 17 may be deprived of their liberty, staff must immediately escalate the matter to the Registered Manager so that appropriate professional and legal advice can be obtained and the correct lawful authorisation route can be identified. A DoLS application must not be treated as the authorisation route for a person under 18.

Nothing in this policy permits care, treatment, restraint, restriction or deprivation of liberty without the lawful authority required for the individual concerned.

3. Related Policies

This policy should be read in conjunction with the following:

• CHW07 – Person-Centred Care Policy
• CHW09 – Consent to Care Policy
• CHW11 – Safe Care and Treatment Policy
• CHW13 – Safeguarding Adults from Abuse and Improper Treatment Policy
• CHW36 – Initial Assessment and Care Planning Policy
• CHW39 – Mental Capacity and Deprivation of Liberty Safeguards Policy
• CHW35 – Duty of Candour Policy
• CHW30 – Equality, Diversity, and Inclusion Policy

4. Policy Implementation and Guidance

Understanding Mental Capacity

Mental capacity is the ability of an individual to make a particular decision at the time the decision needs to be made. Capacity is both decision-specific and time-specific. An individual may have capacity to make some decisions but lack capacity to make others, and an individual’s capacity may change or fluctuate.

Staff must always begin with the statutory presumption that an individual has capacity unless it is established that they lack capacity in relation to the particular decision.

Before concluding that an individual lacks capacity, all practicable steps must be taken to support them to make the decision themselves. This may include providing information in an accessible form, using the individual’s preferred language or method of communication, involving communication aids or interpreters, choosing an appropriate time and environment, allowing additional time, treating reversible causes affecting decision-making where appropriate, and involving people who know how the individual communicates where this is lawful and appropriate.

A capacity assessment must relate to the specific decision that needs to be made and to the time at which that decision is required. The person responsible for assessing capacity will depend upon the nature and complexity of the decision. Staff must only undertake assessments that fall within their role and competence and must obtain advice or refer to an appropriate healthcare, social care or other professional where the decision or assessment is complex, disputed or outside their competence.

The reason for questioning capacity, the support offered to the individual, the assessment undertaken, the evidence relied upon and the conclusion reached must be recorded where a capacity assessment is required in relation to the individual’s care and support.

The Five Key Principles of the MCA

1. Presumption of capacity: Every adult has the right to make their own decisions unless it is shown they cannot.
2. Support to make decisions: All reasonable steps must be taken to support individuals to make their own decisions before concluding they lack capacity.
3. Right to make unwise decisions: People have the right to make decisions others may regard as unwise.
4. Best interests: Any act done or decision made on behalf of someone who lacks capacity must be done in their best interests.
5. Least restrictive option: Anything done on behalf of someone without capacity must limit their rights and freedoms as little as possible.

Assessment of Capacity

Capacity must not be assessed merely because of an individual’s age, appearance, condition, diagnosis, behaviour or because the individual makes a decision that staff or others consider unwise.

Where there is a reasonable basis for questioning whether an individual has capacity to make a specific decision, the relevant decision-maker must ensure that capacity is assessed in accordance with the Mental Capacity Act 2005.

A person lacks capacity in relation to a particular matter if, at the material time, they are unable to make the decision for themselves because of an impairment of, or a disturbance in the functioning of, the mind or brain.

An individual is unable to make a decision if they are unable to 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 process of making the decision; or
• communicate their decision by any means.

The fact that an individual is only able to retain relevant information for a short period does not, by itself, prevent them from being regarded as able to make the decision.

Before concluding that an individual lacks capacity, all practicable steps must have been taken to support the individual to make the decision and those steps must have been unsuccessful.

Capacity assessments must:

• identify clearly the specific decision that needs to be made;
• identify why there is a reasonable basis for questioning capacity;
• record the practicable steps taken to support the individual to make the decision;
• consider whether there is an impairment of, or disturbance in the functioning of, the mind or brain;
• determine whether, because of that impairment or disturbance, the individual is unable to understand, retain, use or weigh the relevant information or communicate the decision;
• record the evidence supporting the conclusion;
• record the date of the assessment and the person completing it; and
• be reviewed where the decision changes, circumstances change or there is reason to believe that the individual’s capacity may have changed.

Where capacity fluctuates and the decision can reasonably be delayed, consideration must be given to whether the decision can be made at a time when the individual is more likely to have capacity.

Where the decision is complex, serious, disputed or outside the competence of the staff member involved, appropriate professional advice must be obtained.

Best Interests Decisions

Where an individual has been assessed as lacking capacity to make a specific decision, any act undertaken or decision made on their behalf must be in their best interests and must comply with the Mental Capacity Act 2005.

A best interests decision must not be based merely on the individual’s age, appearance, condition or behaviour. The decision-maker must consider all relevant circumstances and, so far as reasonably practicable, must:

• encourage and enable the individual to participate as fully as possible in the decision;
• consider whether the individual is likely to regain capacity and, if so, whether the decision can reasonably wait;
• consider the individual’s past and present wishes and feelings, including any relevant written statement made when they had capacity;
• consider the beliefs and values that would be likely to influence the individual’s decision if they had capacity;
• consider any other factors that the individual would be likely to consider if able to do so;
• where practicable and appropriate, consult anyone named by the individual as someone to be consulted, anyone engaged in caring for the individual or interested in their welfare, any attorney acting under a valid Lasting Power of Attorney, any deputy appointed by the Court of Protection, and any Independent Mental Capacity Advocate where the statutory requirements for an IMCA apply; and
• consider whether the purpose for which an act or decision is proposed can be achieved in a way that is less restrictive of the individual’s rights and freedom of action.

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

The level of recording and decision-making must be proportionate to the seriousness and complexity of the decision. Significant, complex or disputed decisions should normally be supported by a documented multidisciplinary or best interests decision-making process where appropriate.

Records of best interests decisions must clearly identify:

• the specific decision required;
• the capacity assessment relevant to that decision;
• the individual’s wishes, feelings, beliefs and values;
• the people consulted and the views expressed;
• the options considered, including less restrictive alternatives;
• any relevant legal authority, including an attorney or deputy where applicable;
• the decision reached and the reasons why it is considered to be in the individual’s best interests; and
• when the decision or arrangements will be reviewed.

Use of Advocacy

Individuals must be supported to access advocacy where this is required to enable them to participate in decisions about their care and support.

Where an individual lacks capacity to make a relevant decision, staff must consider whether the statutory Independent Mental Capacity Advocate (IMCA) provisions apply.

In particular, where an individual lacks capacity and there is no person, other than a person engaged in providing care or treatment in a professional capacity or for remuneration, whom it would be appropriate to consult, an IMCA may be required where a qualifying decision is being made by an NHS body or local authority, including certain decisions concerning serious medical treatment or long-term accommodation.

{{org_field_name}} does not itself appoint an IMCA under the statutory scheme. Where staff identify that an individual may meet the criteria for IMCA involvement, the matter must be referred or escalated promptly to the relevant NHS body, local authority or other responsible decision-maker so that the statutory duty can be fulfilled.

Staff must co-operate with an appointed IMCA, provide relevant information lawfully requested for the decision-making process, facilitate access to the individual and ensure that the IMCA’s representations and report are taken into account by the appropriate decision-maker.

Staff must also recognise that advocacy may be appropriate in circumstances beyond the statutory IMCA scheme and must support individuals to access relevant independent advocacy services where required.

Deprivation of Liberty

An individual must not be deprived of their liberty for the purpose of receiving care and support without lawful authority. {{org_field_name}} must act in accordance with the Mental Capacity Act 2005, the Deprivation of Liberty Safeguards where applicable, Article 5 of the European Convention on Human Rights, current case law and applicable statutory and CIW guidance.

The assessment of whether care arrangements amount to a deprivation of liberty must reflect the current legal test. Following the United Kingdom Supreme Court judgment of 2 June 2026, staff must not rely solely upon the former test of whether an individual is under continuous supervision and control and is not free to leave.

Whether arrangements amount to a deprivation of liberty requires consideration of the individual’s specific circumstances and the arrangements as a whole. Relevant factors include, but are not limited to:

• the type and extent of restrictions imposed;
• the duration of those restrictions;
• the effects of the restrictions upon the individual;
• the manner in which the restrictions are implemented;
• whether and how the individual objects to the arrangements;
• the individual’s expressed wishes and feelings;
• the degree to which the arrangements resemble confinement or detention;
• the relative normality of the arrangements in the setting concerned; and
• the purpose and practical operation of the arrangements.

No single factor is determinative. Continuous supervision and control and whether an individual is free to leave remain relevant considerations but are no longer, by themselves, the legal test for determining whether a deprivation of liberty exists.

Staff must pay particular attention to the individual’s wishes and feelings. Objection may be verbal or may be communicated through behaviour or actions, including attempts to leave, resistance to care or treatment, physical rejection of care or distress associated with restrictions. Compliance must not automatically be treated as consent.

Where there is serious doubt about whether an individual is objecting, whether they validly accept the arrangements or whether the restrictions amount to a deprivation of liberty, staff must escalate the matter immediately to the Registered Manager and a referral must be made to the appropriate supervisory body or court process as applicable. Legal or specialist advice must be sought where necessary.

For individuals aged 18 and over residing in a care home, where the arrangements are considered to amount, or may amount, to a deprivation of liberty and the individual cannot lawfully consent to the arrangements, the care home, acting as the managing authority, must request the appropriate DoLS authorisation from the relevant supervisory body. Where the circumstances require immediate deprivation of liberty before a standard authorisation can be obtained, the Registered Manager must ensure that the statutory urgent authorisation process is followed where the legal requirements for doing so are met and that a standard authorisation is requested as required.

DoLS must not be used as the authorisation mechanism for a person under 18. Where a person aged 16 or 17 may be deprived of their liberty, the Registered Manager must obtain appropriate professional and legal advice so that the correct lawful authorisation route is followed.

Existing DoLS authorisations must be monitored. Restrictions must not be imposed merely because they are permitted by an authorisation; they must remain necessary, proportionate and in the individual’s best interests. Any conditions attached to an authorisation must be implemented and reflected in the individual’s personal plan. Where circumstances materially change, or where there is reason to believe an authorisation may no longer be required or appropriate, the Registered Manager must liaise with the supervisory body and seek review as necessary.

The Registered Manager must ensure that:

• potential deprivations of liberty are identified and reviewed;
• unnecessary restrictions are reduced or removed;
• lawful authority is obtained wherever required;
• relevant capacity assessments, best interests decisions, restrictions, authorisations, conditions and review dates are accurately recorded;
• staff understand the current legal framework and are informed of relevant changes to legislation, case law and guidance;
• the individual and their representative are supported to understand the safeguards and their rights, including rights of review and challenge; and
• applications and authorisations are monitored so that further action is taken before an authorisation expires where continued lawful authority may be required.

CIW Notification of Deprivation of Liberty Safeguards

{{org_field_name}} must comply with the notification requirements of the Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017, as amended.

Where a request is made to a supervisory body in relation to the application of the Deprivation of Liberty Safeguards, the required notification must be submitted to Care Inspectorate Wales through CIW Online in accordance with the current CIW notification process.

The notification requirement applies to a DoLS request made by the care home and is not dependent upon the supervisory body subsequently granting the authorisation. The Registered Manager must therefore ensure that the required CIW notification is made when the DoLS request is submitted and that a record of the notification is retained.

The service must also maintain records of the application, any urgent authorisation, the outcome of the supervisory body’s assessment, any standard authorisation granted or refused, any conditions imposed, review requests, expiry dates and any further applications.

The Registered Manager must ensure there is an effective system for monitoring outstanding applications and existing authorisations and for escalating any delay or concern where an individual may be deprived of their liberty without appropriate safeguards or lawful authority.

Training and Competence

All staff whose roles involve the care and support of individuals must receive training appropriate to their role on the Mental Capacity Act 2005 and, where relevant, the Deprivation of Liberty Safeguards.

Training must form part of induction and must be refreshed at appropriate intervals and whenever changes to legislation, case law or relevant national or CIW guidance materially affect staff practice.

The Registered Manager must ensure that staff have knowledge and competence appropriate to their responsibilities, including the ability to:

• apply the statutory presumption of capacity;
• understand that capacity is decision-specific and time-specific;
• take practicable steps to support individuals to make their own decisions;
• recognise when capacity may need to be assessed;
• undertake or escalate capacity assessments appropriately within the limits of their role and competence;
• apply the statutory test of capacity;
• understand and contribute appropriately to best interests decision-making;
• recognise the importance of an individual’s wishes, feelings, beliefs and values;
• identify and consider less restrictive alternatives;
• recognise restrictions that may contribute to a deprivation of liberty;
• understand the current multifactorial approach to identifying a deprivation of liberty and not rely solely on the former “continuous supervision and control and not free to leave” test;
• recognise verbal and non-verbal indications that an individual may be objecting to their care or restrictions;
• understand when a potential deprivation of liberty must be escalated;
• understand the purpose and operation of DoLS in care homes;
• understand that DoLS apply to people aged 18 and over and that different lawful authority is required where a person under 18 may be deprived of liberty;
• understand the requirement for lawful authority before an individual is deprived of liberty; and
• understand the recording, reporting and CIW notification requirements relevant to DoLS.

Training records must be maintained and the Registered Manager must take appropriate action where supervision, audit, incidents or practice identify gaps in an individual staff member’s understanding or competence.

Monitoring and Quality Assurance

{{org_field_name}} will monitor compliance with the Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards through its governance and quality assurance arrangements.

Monitoring will include, where applicable:

• audits of capacity assessments to ensure they are decision-specific, evidence-based and appropriately recorded;
• audits of best interests decisions and evidence that the individual has been involved as fully as possible;
• review of whether practicable support has been provided before a conclusion of lack of capacity is reached;
• review of restrictions and restrictive practices to ensure they remain necessary, proportionate and the least restrictive practicable option;
• review of individuals whose care arrangements may amount to a deprivation of liberty;
• review of the individual’s wishes, feelings and any indication of objection to their care or restrictions;
• monitoring of DoLS applications, urgent authorisations, standard authorisations, conditions, review dates and expiry dates;
• confirmation that required DoLS applications and CIW notifications have been made;
• monitoring of applications awaiting determination and escalation where delay may leave an individual without appropriate legal safeguards;
• confirmation that conditions attached to DoLS authorisations are reflected in personal plans and implemented in practice;
• review of incidents involving restraint, control or other restrictions that may affect the lawfulness of the individual’s care arrangements;
• supervision and competency checks relating to staff understanding of the MCA and DoLS; and
• consideration of complaints, safeguarding concerns, incidents and feedback relating to consent, capacity, restrictions or deprivation of liberty.

Where monitoring identifies that an individual may be deprived of their liberty without lawful authority, or that an existing authorisation may no longer reflect the person’s circumstances, immediate action must be taken to protect the individual’s rights and obtain appropriate advice, review or lawful authority.

Findings from audits and monitoring must be recorded, actions allocated and completion monitored through the service’s governance arrangements. Relevant findings must inform reviews of the individual’s personal plan and the service’s wider quality assurance and improvement processes.

CIW inspectors can expect to see clear documentation of capacity assessments, best interest decisions, DoLS authorisations, and evidence of least restrictive care in practice. We demonstrate a culture that values autonomy and human rights in all decisions made on behalf of individuals who lack capacity.

5. Policy Review

This policy will be reviewed at least annually and sooner where required following a change in legislation, regulations, statutory guidance, relevant case law, CIW guidance or other national guidance that affects the operation of the Mental Capacity Act 2005 or the Deprivation of Liberty Safeguards.

The service provider will ensure that this policy is kept up to date and that the service is provided in accordance with it. The Registered Manager is responsible for ensuring that the policy is implemented in day-to-day practice and that staff are made aware of changes relevant to their roles. The Responsible Individual will maintain oversight of the service’s compliance through the governance and quality assurance arrangements applicable to the service.

Where a legal or regulatory change has an immediate effect on practice, implementation will not be delayed until the next scheduled annual review. The policy, associated procedures, staff guidance and training will be amended as soon as reasonably practicable and any immediate operational action required to protect individuals’ rights will be taken without delay.

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