NA28-Mental Capacity and Deprivation of Liberty Safeguards (DoLS) 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 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, staff, and other parties to ensure that {{org_field_name}} maintains safe and lawful practices in accordance with the Mental Capacity Act 2005, the Mental Capacity (Amendment) Act 2019, the Human Rights Act 1998, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, and all relevant guidance from the Care Quality Commission (CQC) and other statutory bodies.

2. Scope

This policy applies to: All temporary and agency staff supplied by {{org_field_name}}, including registered nurses and healthcare assistants working in care homes, nursing homes, and other health and social care settings. All directors, office staff, and contractors engaged by {{org_field_name}}. Situations where staff encounter, care for, or make decisions affecting individuals who may lack the capacity to make specific decisions for themselves. All interactions where staff are involved in the provision of care, treatment, or decision-making affecting service users with actual or suspected impaired capacity.

3. Related Policies

Safeguarding Adults Policy
Code of Conduct
Confidentiality and Data Protection Policy
Incident Reporting Policy
Equality, Diversity, and Inclusion Policy
Whistleblowing Policy
Recruitment and Training Policy

4. Legislative Framework

This policy is underpinned by the following legislation and guidance: Mental Capacity Act 2005 and Code of Practice; Mental Capacity (Amendment) Act 2019; Deprivation of Liberty Safeguards (Schedule A1 to the MCA); Human Rights Act 1998; Care Act 2014; Health and Social Care Act 2008 (Regulated Activities) Regulations 2014; Equality Act 2010; Data Protection Act 2018 and UK GDPR.

5. The Five Statutory Principles of the Mental Capacity Act

All staff must apply the five key principles of the Mental Capacity Act: A person must be assumed to have capacity unless it is established otherwise. A person is not to be treated as unable to make a decision unless all practicable steps have been taken to help them without success. A person is not to be treated as unable to make a decision merely because they make an unwise decision. Any act or decision made on behalf of a person who lacks capacity must be done in their best interests. Any act or decision made must be the least restrictive of the person’s rights and freedoms.

6. Responsibilities

Directors The directors of {{org_field_name}} are accountable for the implementation, maintenance, and review of this policy. The directors will: Ensure all temporary workers receive training on the Mental Capacity Act and DoLS as part of induction and regular refresher training. Ensure that this policy is kept up to date with changes in law, case law, and best practice. Audit compliance and investigate incidents where capacity or deprivation of liberty issues are raised. Support clients and staff when complex capacity issues arise. Promote a safeguarding culture that respects autonomy and lawful restrictions only when necessary.

Temporary and Agency Staff All registered nurses, healthcare assistants, and other temporary workers supplied by {{org_field_name}} must: Understand and apply the principles of the Mental Capacity Act and DoLS when working with service users. Carry out, contribute to, or respect capacity assessments undertaken by appropriate qualified professionals. Act in the best interests of service users who lack capacity. Escalate concerns regarding capacity, consent, safeguarding, or possible deprivation of liberty to the client’s manager and to {{org_field_name}}. Document actions and decisions accurately and clearly. Engage fully with training on the MCA, DoLS, and Liberty Protection Safeguards (LPS) when introduced.

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. The assessment must: Relate to the specific decision required. Follow a two-stage test: a) Does the person have an impairment of, or a disturbance in the functioning of, the mind or brain? b) If so, does the impairment mean the person is unable to make the specific decision when required? Consider if the person can: Understand relevant information; Retain the information long enough to make the decision; Use or weigh the information as part of the decision-making process; Communicate their decision by any means. Agency workers should not carry out formal capacity assessments unless qualified and authorised by the placement manager but must observe and report concerns when capacity is in question.

8. Best Interests Decision-Making

When a person is found to lack capacity, any decision or action taken on their behalf must be in their best interests. Factors to be considered include: The person’s wishes, feelings, beliefs, and values. The views of family members, advocates, or other representatives. The need to avoid discrimination. Consideration of all available options and the one that imposes the least restriction. Staff must involve the person as much as possible in decision-making, even when they lack capacity.

9. Deprivation of Liberty Safeguards (DoLS)

DoLS apply to individuals in care homes or hospitals aged 18 or over who lack capacity and are subject to restrictions amounting to a deprivation of liberty. A deprivation of liberty occurs when: The person is under continuous supervision and control. They are not free to leave. They lack capacity to consent to the arrangements. Any such deprivation must be authorised lawfully by the local authority via DoLS authorisation or, in future, the Liberty Protection Safeguards (LPS) once implemented. Agency workers must: Be aware of any DoLS authorisations in place. Comply with the restrictions lawfully authorised. Report any unauthorised deprivation of liberty to the placement manager and to {{org_field_name}} immediately. Support clients in applying for authorisations when needed.

10. Record Keeping

Accurate record-keeping is essential. Staff must: Record all observations, actions, and decisions in relation to capacity assessments, best interests decisions, and application of DoLS restrictions. Record how the person was involved in decision-making. Record the details of any advance decisions, powers of attorney, or court-appointed deputies. Document and report any concerns about unlawful deprivation of liberty.

11. Consent and Communication

Obtaining valid consent is a fundamental principle of care. Staff must: Always seek the informed consent of service users who have capacity. Provide information in a way the person can understand, using communication aids if necessary. Respect the right of individuals to make unwise decisions where they have capacity. Involve advocates, family members, or Independent Mental Capacity Advocates (IMCAs) where applicable, especially when making decisions for those who lack capacity.

12. Training and Competence

All agency workers must: Complete mandatory Mental Capacity Act and DoLS training prior to deployment. Engage with refresher training annually or sooner if changes occur. Understand their role and responsibilities under the MCA and DoLS framework. Be able to recognise signs of capacity issues and deprivation of liberty and act appropriately.

13. Supervision and Monitoring

{{org_field_name}} directors will: Conduct regular audits of incident reports and feedback from clients regarding capacity-related matters. Respond to complaints or safeguarding concerns involving MCA or DoLS. Review staff training records and provide targeted support where knowledge gaps are identified. Ensure that staff comply with this policy in line with regulatory expectations from the CQC.

14. Safeguarding

Any concerns regarding unlawful restrictions, neglect, abuse, or breaches of this policy will be managed in line with {{org_field_name}}’s Safeguarding Adults Policy. Staff must report concerns immediately to both the placement manager and {{org_field_name}}.

15. Implementation of the Liberty Protection Safeguards (LPS)

The Mental Capacity (Amendment) Act 2019 introduces the LPS, which will replace DoLS in the near future. Once implemented: {{org_field_name}} will update this policy accordingly. Staff will be trained on the LPS system. Staff will be expected to work collaboratively with placements to implement the new framework lawfully.

16. Directors’ Management of Compliance

The directors of {{org_field_name}} will: Oversee the policy’s implementation and ensure it is embedded into recruitment, induction, and training processes. Act on feedback from clients, staff, and regulators regarding capacity and DoLS practices. Report serious concerns to the Care Quality Commission or local safeguarding teams where appropriate. Review this policy annually or when prompted by legislative changes.

17. Policy Review

This policy will be reviewed every 12 months or earlier if there are: Changes to legislation such as the implementation of the Liberty Protection Safeguards. Updates to best practice guidance from the CQC, DHSC, or other statutory bodies. Lessons learned from incidents, audits, or safeguarding enquiries.

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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