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NA28-Mental Capacity and Deprivation of Liberty Safeguards (DoLS) Policy

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Mental Capacity and Deprivation of Liberty Safeguards (DoLS) Policy

1. Purpose

The purpose of this policy is to provide clear, comprehensive, and legally compliant guidance on the application of the Mental Capacity Act 2005 (MCA) and the Deprivation of Liberty Safeguards (DoLS) within {{org_field_name}}. As a temporary healthcare staffing agency supplying registered nurses and healthcare assistants to care homes and other adult social care settings, {{org_field_name}} has a legal and moral responsibility to ensure that all staff working through the agency understand, respect, and apply the principles of the Mental Capacity Act and DoLS when caring for service users who may lack capacity. This policy aims to protect and promote the rights, freedom, and dignity of individuals who may lack mental capacity while ensuring that any restrictions imposed upon them are lawful, proportionate, and in their best interests.

This policy also clarifies the responsibilities of directors, office staff and temporary agency workers to ensure that {{org_field_name}} maintains safe and lawful staffing practices in accordance with the Mental Capacity Act 2005, the Mental Capacity Act Code of Practice, the Deprivation of Liberty Safeguards framework, the Human Rights Act 1998, the Care Act 2014, the Equality Act 2010, the UK GDPR and Data Protection Act 2018, and relevant statutory and professional guidance. As {{org_field_name}} is a temporary staffing agency and does not itself provide regulated care, responsibility for making care-planning decisions, completing formal DoLS applications and submitting statutory notifications will normally rest with the client care provider, hospital, care home, local authority or other responsible body, unless otherwise required by law or contract.

2. Scope

This policy applies to:

For the avoidance of doubt, {{org_field_name}} does not itself provide regulated care or treatment and does not replace the legal responsibilities of the client provider, placement manager, responsible clinician, local authority, supervisory body, managing authority or Court of Protection. Agency workers must work within their role, competence, professional registration and the client’s agreed care plans, and must promptly escalate any concern about capacity, consent, restraint, restrictions or possible deprivation of liberty to the placement manager and to {{org_field_name}}.

3. Related Policies

4. Legislative and Guidance Framework

This policy is underpinned by the following legislation and guidance, as applicable in England:

5. The Five Statutory Principles of the Mental Capacity Act

All staff must apply the five key principles of the Mental Capacity Act:

6. Responsibilities

Directors

The directors of {{org_field_name}} are accountable for the implementation, maintenance, and review of this policy. The directors will:

Temporary and Agency Staff

All registered nurses, healthcare assistants, and other temporary workers supplied by {{org_field_name}} must:

6.1 Client and Placement Responsibilities

The client provider, placement manager, hospital, care home or other receiving organisation remains responsible for assessing, planning and managing the care and treatment provided within its service. This includes ensuring that:

{{org_field_name}} will request and rely on relevant placement information from clients but will also require agency workers to escalate any concern where information appears absent, unclear, unsafe or inconsistent with the person’s rights.

7. Mental Capacity Assessments

Capacity assessments must be carried out when there is doubt about a person’s ability to make a specific decision at a specific time. Capacity must never be assessed globally or assumed because of a person’s age, appearance, disability, diagnosis, behaviour, communication difficulty, mental health condition, intoxication, previous decision-making or because the person makes a decision others consider unwise. Capacity is decision-specific and time-specific. A person may have capacity to make some decisions but not others, and may have capacity at some times but not at others.

The assessment must:

Agency workers must not carry out formal capacity assessments unless this falls within their professional role, competence, placement instructions and authorisation by the client provider. Agency workers must, however, support the person to make their own decision where practicable, observe and report concerns, record relevant facts accurately, and escalate promptly where capacity is in doubt or where consent appears absent, unclear or withdrawn.

8. Best-Interests Decision-Making

Where a person is assessed as lacking capacity for a specific decision, any act done or decision made for or on behalf of that person must be in their best interests and must follow the Mental Capacity Act 2005 and its Code of Practice. Staff must not make assumptions about best interests based merely on the person’s age, appearance, condition, diagnosis, disability, behaviour or perceived quality of life.

Best-interests decision-making must, where relevant and practicable, consider:

Agency workers must involve the person as much as possible in the decision, even where the person lacks capacity. Agency workers must follow the client’s care plan and lawful instructions, but must escalate immediately if they believe a decision, instruction or restriction may not be in the person’s best interests or may be more restrictive than necessary.

8.1 Restraint, Restrictions and Least Restrictive Practice

Restraint includes the use or threat of force to make a person do something they are resisting, or restricting a person’s freedom of movement, whether or not they resist. Any restraint used in relation to a person who lacks capacity must be necessary to prevent harm and must be proportionate to the likelihood and seriousness of that harm.

Agency workers must use the least restrictive option available and must only use restraint where it is lawful, necessary, proportionate, consistent with the person’s care plan, within their training and competence, and required to prevent harm. Restraint must never be used for staff convenience, punishment, coercion, discrimination, institutional routine or as a substitute for appropriate staffing, assessment or care planning.

Any unplanned, excessive, repeated, unclear or concerning restriction or restraint must be reported immediately to the placement manager and to {{org_field_name}}, and recorded in accordance with the client’s procedures and this policy.

9. Deprivation of Liberty Safeguards (DoLS)

DoLS applies in England to people aged 18 or over who are in a care home or hospital, lack capacity to consent to the arrangements for their care or treatment, and are deprived of their liberty. A deprivation of liberty is likely to arise where the person is under continuous supervision and control and is not free to leave.

DoLS authorisation is the responsibility of the managing authority, usually the care home or hospital, and the supervisory body, usually the local authority. Agency workers do not apply for DoLS authorisations on behalf of {{org_field_name}}. However, they must understand when restrictions may amount to a deprivation of liberty and must escalate concerns immediately.

Agency workers must:

Where a deprivation of liberty is required outside a care home or hospital, or where the person is under 18, DoLS will not usually provide the required legal authorisation. In such cases, the client provider or relevant public body should seek appropriate legal authorisation, usually from the Court of Protection. Agency workers must escalate any concern about such arrangements immediately.

9.1 Urgent DoLS Authorisations

In urgent situations, the managing authority of a care home or hospital may issue an urgent DoLS authorisation while requesting a standard authorisation from the supervisory body. Agency workers are not responsible for issuing urgent authorisations, but must promptly alert the placement manager where restrictions appear to amount to a deprivation of liberty and no authorisation is known to be in place.

Where an urgent authorisation or standard authorisation is in place, agency workers must be informed of the practical restrictions and conditions relevant to their role. If an agency worker is asked to apply restrictions without being given sufficient information, they must seek clarification from the placement manager and escalate unresolved concerns to {{org_field_name}}.

9.2 Interface with the Mental Health Act 1983

Some people may be subject to the Mental Health Act 1983, or may require assessment under that Act, rather than authorisation under DoLS. Agency workers are not responsible for deciding which legal framework applies, but must immediately escalate to the placement manager and to {{org_field_name}} where a person’s mental health presentation, objection to admission or treatment, request to leave, level of restriction, or legal status is unclear.

Agency workers must follow lawful instructions, care plans and legal authorisations provided by the client, but must not assume that DoLS authorises mental health treatment or that it can be used where the Mental Health Act 1983 is the appropriate legal framework.

10. Record Keeping

Accurate and factual record keeping is essential. Agency workers must record relevant information in the client’s care records in accordance with the client’s procedures and must also report relevant incidents or concerns to {{org_field_name}} where required by this policy. Records must be clear, dated, timed, factual and proportionate.

Staff must record, where relevant to their role:

Agency workers must not remove, copy, photograph or share care records, DoLS documents, capacity assessments or other confidential information unless this is lawful, necessary, authorised and in accordance with data-protection requirements.

10.1 Data Protection and Confidentiality

Information about a person’s capacity, health, care, DoLS status, safeguarding concerns, disability, mental health, medication, behaviour, family circumstances, legal representatives or Court of Protection involvement is confidential and may include special category personal data. Staff must handle such information in accordance with UK GDPR, the Data Protection Act 2018, confidentiality duties, client procedures and {{org_field_name}}’s Confidentiality and Data Protection Policy.

Staff must only access, use or share information where it is lawful, necessary and proportionate for the person’s care, safety, safeguarding, legal compliance or placement management. Information must be shared securely and only with people who need to know. Staff must not discuss confidential information in public areas, on social media, with unauthorised persons or through insecure communication channels.

11. Consent, Communication and Advocacy

Valid consent must be sought before care, treatment or support is provided to a person who has capacity to make the relevant decision. Consent must be informed, voluntary and specific to the decision. A person with capacity has the right to refuse care or treatment, even where others consider the refusal unwise.

Staff must provide information in a way the person is most likely to understand. This may include using plain language, pictures, objects of reference, interpreters, communication aids, hearing aids, glasses, additional time, familiar people, quiet environments or other reasonable adjustments. Staff must consider whether the person’s capacity may fluctuate and whether the decision can safely wait until the person is more likely to be able to decide.

Where a person lacks capacity, staff must still involve them as much as possible and must follow the client’s best-interests decision and care plan. Staff must check whether there is a relevant lasting power of attorney, court-appointed deputy, advance decision to refuse treatment, advocate or Independent Mental Capacity Advocate involved.

An Independent Mental Capacity Advocate should be considered where required by the MCA, including for certain serious medical treatment decisions, long-term accommodation decisions, safeguarding matters or care reviews where the person lacks capacity and has no appropriate person to consult. Agency workers must escalate to the placement manager where advocacy appears necessary or absent.

11.1 Refusal, Objection and Distress

Where a person refuses care, treatment, support, medication, personal care, nutrition, hydration, observation or a request to remain in a setting, staff must not assume that the person lacks capacity. Staff must consider whether the person has capacity for the specific decision, whether they need more information or communication support, whether the timing or approach should be changed, and whether a less restrictive option is available.

If the person appears to have capacity, their refusal must usually be respected, unless another lawful authority applies. If the person may lack capacity, staff must follow the client’s care plan and best-interests decision, but must escalate any significant refusal, objection, distress or use of restraint to the placement manager and to {{org_field_name}}. Staff must record the facts, the person’s words or behaviour where relevant, the steps taken to support decision-making, who was informed and the outcome.

12. Training and Competence

All agency workers must complete Mental Capacity Act and DoLS training appropriate to their role before deployment into relevant adult health or social care settings. Refresher training must be completed at least annually, or sooner where required by changes in law, guidance, client requirements, incidents, audit findings or identified learning needs.

Training must cover, as relevant to the worker’s role:

{{org_field_name}} will provide updates on Liberty Protection Safeguards if and when implementation is confirmed in England. Until then, staff must follow the current MCA and DoLS framework.

13. Supervision and Monitoring

{{org_field_name}} directors will:

Monitoring will include reviewing training completion, incident reports, complaints, safeguarding concerns, client feedback and any concerns raised by workers about capacity, consent, restraint, restriction or possible deprivation of liberty. Where repeated concerns arise within a client placement, {{org_field_name}} will consider whether further assurance, escalation, suspension of placements or safeguarding referral is required.

14. Safeguarding

Concerns about unlawful deprivation of liberty, excessive or unexplained restraint, coercion, neglect, abuse, discriminatory practice, failure to obtain consent, failure to follow a DoLS condition, or failure to follow the MCA may amount to safeguarding concerns. Such concerns must be managed in line with {{org_field_name}}’s Safeguarding Adults Policy and the client’s safeguarding procedures.

Agency workers must report concerns immediately to the placement manager and to {{org_field_name}}. Where there is immediate risk of harm, staff must take urgent action within their role and competence to protect the person, including seeking emergency assistance where required. {{org_field_name}} will consider whether concerns should be escalated to the local authority safeguarding team, professional regulator, client senior management, commissioning body or other appropriate authority.

15. Liberty Protection Safeguards

The Mental Capacity (Amendment) Act 2019 created the Liberty Protection Safeguards, which are intended to replace DoLS. However, Liberty Protection Safeguards are not currently in force in England and there is no current implementation date. Until the law changes, DoLS remains the relevant statutory framework for authorising deprivation of liberty in care homes and hospitals for people aged 18 or over.

{{org_field_name}} will monitor government announcements, statutory guidance and implementation plans. If Liberty Protection Safeguards are implemented, this policy will be reviewed and updated, and relevant staff will receive training before any revised duties are applied in practice.

16. Directors’ Management of Compliance

The directors of {{org_field_name}} will:

17. Policy Review

This policy will be reviewed every 12 months or earlier if there are changes to legislation, statutory guidance, case law, government implementation plans, local safeguarding requirements, client contractual requirements, professional standards, or lessons learned from incidents, complaints, audits or safeguarding enquiries. In particular, the policy will be reviewed if the government confirms implementation of Liberty Protection Safeguards or publishes new statutory guidance affecting MCA or deprivation-of-liberty practice in England.

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}}
Copyright © {{current_year}} – {{org_field_name}}. All rights reserved.

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