CHW39-Mental Capacity and Deprivation of Liberty Safeguards Policy

Registration Number: {{org_field_registration_no}}

Mental Capacity and Deprivation of Liberty Safeguards (DoLS) Policy

1. Purpose

The purpose of this policy is to ensure that {{org_field_name}} acts at all times in accordance with the Mental Capacity Act 2005, the Deprivation of Liberty Safeguards (DoLS), the Mental Capacity Act 2005 Code of Practice, the Deprivation of Liberty Safeguards Code of Practice, and the requirements of the Regulation and Inspection of Social Care (Wales) Act 2016 and the Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017, as supported by the Welsh Government’s statutory guidance for care home and domiciliary support providers. This policy sets out how the service will assess capacity, support residents to make their own decisions wherever possible, make lawful best interests decisions when capacity is lacking, identify when care arrangements may amount to a deprivation of liberty, obtain lawful authority before any deprivation of liberty occurs, notify Care Inspectorate Wales (CIW) as required, and maintain accurate records, oversight and staff competence.

2. Scope

This policy applies to all staff, agency staff, managers and professionals working within {{org_field_name}}. It applies to all decisions about care, treatment and support for residents who may lack capacity to make a specific decision at the time that decision needs to be made.

For the purposes of Deprivation of Liberty Safeguards (DoLS), this section applies to adults aged 18 and over living in the care home whose care arrangements may amount to a deprivation of liberty. DoLS applies only in hospitals and care homes and must not be used for people under 18.

Where a person under 18 is receiving services, or where restrictions outside the DoLS framework are being considered, legal advice and the relevant statutory route must be sought. No deprivation of liberty will be implemented without lawful authority.

2.1 Important age and setting clarification

DoLS applies only to people aged 18 or over in care homes or hospitals. If a younger person is subject to restrictions amounting to a deprivation of liberty, the legal authority will usually arise through a court process rather than DoLS. Care homes in Wales providing for children who are subject to deprivation of liberty orders must follow CIW’s separate guidance on High Court orders for children.

3. Principles of the Mental Capacity Act (MCA) 2005

The five statutory principles of the Mental Capacity Act 2005 apply to every act done and every decision made under this policy and must guide all practice within the service.

Presumption of capacity: Every adult is assumed to have the capacity to make their own decisions unless proven otherwise.
Right to make unwise decisions: A person should not be treated as lacking capacity simply because they make an unwise decision.
Individual support to make decisions: All practical steps must be taken to help a person make their own decisions before considering lack of capacity.
Best interests: Any decision made on behalf of a person lacking capacity must be in their best interests.
Least restrictive option: Any intervention must be the least restrictive necessary to achieve the intended outcome.

4. Assessing Mental Capacity

Mental capacity must always be assessed on a decision-specific and time-specific basis. A person may have capacity to make some decisions but not others, and capacity may fluctuate.

A two-stage test must be used:

Diagnostic test: Is there an impairment of, or disturbance in, the functioning of the mind or brain, whether permanent or temporary?
Functional test: Does that impairment or disturbance mean the person is unable to make the specific decision when it needs to be made?

A person is unable to make the decision if, after all practicable support has been given, they cannot:

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

Capacity assessments must be clearly recorded, including:

the specific decision being considered,
why there is reason to doubt capacity,
what practicable steps were taken to support the person to decide for themselves,
the outcome of the two-stage test,
who completed the assessment,
who was consulted, and
the date and time of the assessment.

If there is doubt, complexity, disagreement or fluctuating presentation, advice must be sought from an appropriately qualified professional.

5. Supporting Decision-Making

Before deciding that a resident lacks capacity, staff must take all practicable steps to support the resident to make the decision themselves. This may include, as appropriate:

choosing the best time of day for the discussion,
using clear and simple language,
breaking information into small steps,
repeating or rephrasing information,
using visual prompts, pictures, written information or assistive technology,
involving staff who know the person well,
allowing extra time,
reducing noise or distraction,
considering pain, distress, medication effects, delirium, sensory loss or communication needs,
offering support in Welsh or the resident’s preferred language or communication method where required.

Family members, friends and others should be involved where this is lawful, appropriate and consistent with the resident’s wishes and well-being.

Where a resident who lacks capacity has no appropriate family member or friend to consult in relation to a serious medical treatment decision or a qualifying accommodation decision, the service must alert the relevant NHS body or local authority to consider instruction of an Independent Mental Capacity Advocate (IMCA). Staff must also consider whether IMCA involvement may be appropriate in safeguarding or care review situations.

6. Best Interest Decision-Making Process

If a resident lacks capacity for a specific decision, any act done or decision made on their behalf must be in their best interests and must be the least restrictive lawful option.

Best interests decision-making must include, where practicable and appropriate:

involving the resident as fully as possible,
considering whether the decision can be delayed until the resident may regain capacity,
considering the resident’s past and present wishes, feelings, beliefs and values,
consulting anyone named by the resident as someone to be consulted,
consulting family members, friends and others interested in the resident’s welfare,
consulting any attorney under a Lasting Power of Attorney and any Court-appointed deputy,
checking whether there is any valid and applicable advance decision to refuse treatment,
considering all less restrictive alternatives,
clearly recording the reasons for the final decision.

Best interests decisions must never be based merely on a person’s age, appearance, condition or behaviour. Where there is disagreement, complexity, or a potentially serious restriction of liberty, senior management and relevant professionals must be involved without delay.

7. Deprivation of Liberty Safeguards (DoLS)

A resident must not be deprived of their liberty for the purpose of receiving care or treatment unless there is lawful authority in place. In care homes, DoLS applies only to adults aged 18 or over who lack capacity to consent to the care arrangements and whose arrangements amount to a deprivation of liberty.

Care arrangements may amount to a deprivation of liberty where the resident:

lacks capacity to consent to those arrangements,
is under continuous supervision and control, and
is not free to leave.

The service must always first consider whether the care can be provided in a way that is less restrictive. If the acid test is met, the home must not rely on general care planning alone and must seek lawful authorisation through the DoLS framework. The care home is the managing authority for DoLS purposes. The supervisory body is the relevant local authority. In Wales, the authorising local authority is the local authority in which the individual was ordinarily resident before moving to live in the care home.

7.1 Applying for a DoLS Authorisation

If the service identifies that a resident aged 18 or over may be deprived of their liberty, the Registered Manager or delegated senior person must:

confirm and record why the resident lacks capacity to consent to the care arrangements;
evidence what less restrictive alternatives have been considered and why they are not sufficient;
complete and submit the appropriate DoLS application to the supervisory body/local authority;
notify CIW through CIW Online of the application made;
ensure the resident, and where appropriate their family or representative, are informed in an accessible way about the application and the safeguards process;
cooperate fully with the supervisory body and assessors, including providing care plans, risk assessments, mental capacity assessments, records of restrictions, and evidence of consultation.

The DoLS process considers the statutory qualifying requirements, including age, mental health, mental capacity, best interests, eligibility and no refusals. The service must therefore ensure that any advance decision, any Health and Welfare Lasting Power of Attorney, any deputyship order, and any Mental Health Act issue are identified and shared promptly with the supervisory body. A standard authorisation assessment must be completed within 21 days from the date the assessors are instructed by the supervisory body.

7.2 Urgent Authorisations

An urgent authorisation may only be used where the need to deprive the resident of liberty is so urgent that it is in the resident’s best interests for the deprivation to begin before a standard authorisation can be obtained.

If an urgent authorisation is granted by the care home:

a standard authorisation must be requested at the same time if it has not already been requested;
the urgent authorisation lasts for a maximum of 7 calendar days;
if exceptional reasons apply, the managing authority may request an extension from the supervisory body;
where an urgent authorisation has been given and a standard authorisation requested, the local authority’s assessors must complete the assessment within 5 days of instruction.

Urgent authorisations must never be used as a matter of routine or as a substitute for timely care planning.

7.3 Duration, Review and Further Authorisations

A DoLS authorisation is granted for the period determined by the assessment process and must not exceed 12 months. It must not be assumed that every authorisation lasts 12 months.

A review must be requested immediately if the service believes that:

the resident may have regained capacity,
the resident is no longer being deprived of liberty,
the restrictions have increased or materially changed,
the eligibility or no refusals position may have changed, or
the authorisation may no longer be necessary or proportionate.

The resident, their representative and the managing authority may request a review at any time.

If the deprivation of liberty is still required as an authorisation is coming to an end, the service must request a further authorisation in advance. A further authorisation can be requested up to 28 days before the current authorisation expires.

7.4 Representation and Rights of Challenge

Where a standard authorisation is in force, the resident must have a Relevant Person’s Representative (RPR) appointed in accordance with the statutory scheme. The service must support contact between the resident and their representative and must not obstruct the representative in carrying out their role.

The resident and/or their representative must be informed of their rights to:

ask for a review of the authorisation,
receive support from an IMCA where eligible,
challenge the authorisation in the Court of Protection.

Any indication that the resident objects to the arrangements, wishes to leave, or disputes the restrictions must be taken seriously, escalated promptly and recorded.

7.5 CIW Notification and Records

The Registered Manager must ensure that every DoLS application made to a supervisory body is also notified to CIW through CIW Online, whether or not the application is later granted. Records must be maintained of:

the capacity assessment,
the rationale for the deprivation of liberty concern,
all applications and authorisations,
urgent authorisations and any extension requests,
conditions attached to any authorisation,
the name and contact details of the resident’s representative,
requests for review,
outcomes of reviews and further authorisations,
communication with the resident, relatives, advocates and professionals.

All records must be accurate, secure, up to date and available for regulatory inspection.

8. Staff Responsibilities

All staff must:

presume capacity unless there is reason to doubt it;
support residents to make their own decisions wherever possible;
recognise when a capacity assessment is required and escalate promptly to a senior member of staff;
record restrictions and concerns accurately and contemporaneously;
ensure care is delivered in the least restrictive way possible;
not impose restrictions amounting to deprivation of liberty unless lawful authority is in place or immediate urgent legal steps are being taken;
understand the “acid test” for deprivation of liberty;
know that restraint or restrictive practice must be necessary, proportionate, in the person’s best interests and consistent with the Mental Capacity Act and the service’s restraint policy;
report any concern about unlawful deprivation of liberty, restrictive practice, safeguarding risk or human rights breach immediately;
attend MCA/DoLS training appropriate to their role and keep their knowledge up to date.

The Registered Manager must ensure that senior staff are competent to identify potential deprivation of liberty, submit applications without delay, notify CIW as required, and request a review whenever circumstances change.

9. Compliance and Monitoring

The Registered Manager is responsible for ensuring that:

mental capacity assessments are completed, recorded and reviewed appropriately;
best interests decisions are lawful, clearly documented and reflect least restrictive practice;
any actual or potential deprivation of liberty is identified promptly;
DoLS applications, urgent authorisations, further authorisations and review requests are made in a timely way;
CIW is notified of each DoLS application as required;
residents and representatives are given information about their rights in an accessible format;
staff training, competency checks and supervision cover MCA, DoLS, restraint and human rights;
records relating to mental capacity, restrictive practice and DoLS are audited regularly;
patterns, themes and learning from audits, incidents, complaints, safeguarding concerns and regulatory activity are reviewed and used to improve practice.

MCA and DoLS compliance must form part of the home’s governance, quality assurance and service improvement systems.

10. Related Policies

This policy should be read in conjunction with:

CHW07 – Person-Centred Care Policy
CHW13 – Safeguarding Adults from Abuse and Improper Treatment Policy
CHW36 – Initial Assessment and Care Planning Policy
CHW42 – Communication and Engagement with Service Users and Families Policy

11. Records and Documentation

The service will maintain accurate, complete and contemporaneous records in relation to mental capacity assessments, best interests decisions, restrictive practices, DoLS applications, authorisations, reviews, representative details, conditions, notifications and outcomes. Records must be signed, dated, securely stored and accessible for inspection. Documentation must clearly evidence the decision-making process, the resident’s views and wishes, consultation undertaken, and why the chosen approach is lawful, necessary and proportionate.

12. Policy Review

This policy will be reviewed at least annually and sooner if there are changes to legislation, statutory guidance, Welsh Government or CIW requirements, relevant case law, safeguarding learning, inspection findings, or operational practice within the service. While Liberty Protection Safeguards may replace DoLS in future, DoLS remains the current legal framework until new provisions are brought into force.

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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