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SL39-Mental Capacity and Deprivation of Liberty Safeguards Policy

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Mental Capacity and Deprivation of Liberty Safeguards (DoLS) Policy

1. Introduction

At {{org_field_name}}, we are committed to upholding the rights and dignity of all service users, ensuring that individuals receive care and support in a manner that respects their autonomy and decision-making abilities. This policy outlines our approach to assessing mental capacity and managing situations where restrictions may need to be applied in the best interests of service users, in line with the Mental Capacity Act 2005 (MCA) and the Deprivation of Liberty Safeguards (DoLS) framework. We strive to support each person to make their own decisions wherever possible, while also protecting those who lack capacity from harm.

We recognise that our services must comply with key legislation and Care Quality Commission (CQC) requirements for registered providers. In particular, our policy adheres to the following frameworks and standards:

By adhering to these laws and standards, {{org_field_name}} ensures that we meet our legal obligations and deliver care that is person-centred, lawful, and respectful of each individual’s rights. This policy applies to all employees, care workers, and managers in our supported living services, and it guides our team in safeguarding vulnerable adults while providing high-quality, compliant care.

2. Purpose and Scope

The purpose of this policy is to provide clear guidance on:

This policy covers all service users receiving care from {{org_field_name}}, with particular focus on those with conditions that may affect their cognitive function (such as dementia, learning disabilities, brain injuries, or mental health conditions). It applies equally to all staff members involved in providing or managing care, and sets expectations for practice so that care is person-centred, consensual or in the person’s best interests, and safe.

3. Understanding the Mental Capacity Act 2005

The Mental Capacity Act 2005 (MCA) provides a legal framework for supporting individuals to make their own decisions wherever possible and sets out how decisions should be made for those who lack capacity. It applies to people aged 16 and over in England and Wales and ensures that those who may have difficulty with decision-making are protected, empowered, and treated with dignity and respect. The MCA is fundamental to upholding Regulation 11 (Need for Consent), as it outlines how to obtain consent or act lawfully when consent cannot be given.

At {{org_field_name}}, we ensure that all staff are trained in the MCA and apply its principles in day-to-day care. Our approach is designed to maximise independence while ensuring that service users who lack capacity receive appropriate support and protection. In line with the Care Act 2014’s well-being principle, we also consider each individual’s overall welfare and wishes during any decision-making process.

The Five Key Principles of the Mental Capacity Act: The MCA is built upon five key principles, which underpin all decision-making regarding mental capacity. These principles are legally binding and must be followed by all staff when working with service users:

  1. A Presumption of Capacity – Every adult is assumed to have capacity unless there is clear evidence to suggest otherwise. A person should not be treated as lacking capacity just because they have a particular diagnosis, disability, or condition (e.g. mental illness, learning disability, dementia), or due to their age, appearance, or behavior.
    • Our practice: {{org_field_name}} staff are trained to avoid making assumptions about a person’s ability to decide. Each individual’s capacity is assessed on a case-by-case basis and in relation to specific decisions, rather than making a blanket judgment about their overall capacity. If concerns arise about someone’s capacity, our team follows a structured assessment process to determine whether the person is able to make that particular decision at that time.
  2. The Right to Make Unwise Decisions – Individuals have the right to make decisions that others might consider risky or unwise. The MCA ensures a person is not deemed to lack capacity merely because they make a decision that others disagree with or find imprudent.
    • Our practice: We respect personal choice and autonomy. For example, a service user might choose to spend money on non-essential items instead of saving for necessities; while staff may worry about this choice, it does not mean the person lacks capacity. {{org_field_name}} staff distinguish between genuinely unsafe or uninformed decisions (which might indicate lack of understanding) and simply unwise decisions, which a person has the right to make if they understand the consequences.
  3. The Duty to Support Decision-Making – Before concluding that someone lacks capacity, every reasonable effort must be made to help them understand the information relevant to the decision and to communicate their wishes. This includes providing additional support, using appropriate communication methods, and giving extra time if needed.
    • Our practice: {{org_field_name}} uses various strategies to support individuals in decision-making, including:
      • Breaking down complex information into simpler terms or smaller chunks.
      • Using visual aids, gestures, pictures, or communication devices for those with communication difficulties.
      • Creating a calm, distraction-free environment for important discussions.
      • Repeating and revisiting information over time to aid understanding.
      • Involving trusted family members, friends, or interpreters (as appropriate) to facilitate comprehension.
        By offering these tailored supports, we give each person the best possible chance to make their own informed choices.
  1. Best Interests – If a person is assessed as lacking capacity for a specific decision, any decision made on their behalf must be in their best interests. This means considering what the person would have wanted if they were able to decide, consulting with family members, friends, or advocates, and choosing the option that imposes the least restriction on the person’s rights and freedom.
    • Our practice: When making best interests decisions, {{org_field_name}} staff consider all relevant factors, including: the individual’s past and present wishes, beliefs, and values; input from family, carers, or Independent Mental Capacity Advocates (IMCAs); the benefits and risks of each option (seeking to minimize harm while honoring the person’s preferences); and whether the decision could be delayed if the person might regain capacity. We document every best interests decision thoroughly—recording the reasons for the decision, who was involved in the process, and how we arrived at the least restrictive, most benefit-driven outcome. (See Section 5 for detailed best interests procedures.)
  2. The Least Restrictive Option – Any action or decision taken on behalf of someone who lacks capacity should interfere as little as possible with their basic rights and freedoms. The MCA requires that before imposing a restriction, we explore whether there is a less restrictive alternative that could achieve the necessary outcome.
    • Our practice: {{org_field_name}} is committed to ensuring that any intervention is necessary, proportionate, and as minimal as possible while keeping the person safe. For example, if a service user with dementia wanders and is at risk outside, a locked door might stop them leaving—but a less restrictive approach could be using an alarm system or providing additional supervision at certain times. We always seek such alternatives first, consistent with Regulation 9’s person-centred care focus on individual ways to meet needs without undue restriction. Restrictive measures are used only as a last resort when other options have been deemed ineffective or unsafe.

By embedding these five principles into our care, we uphold individuals’ autonomy and rights, and we ensure our practice remains lawful and ethical.

How We Implement the MCA in Our Services: To ensure full compliance with the MCA (and to satisfy the CQC’s expectations under Regulations 11 and 9 regarding consent and person-centred planning), we have established clear procedures for assessing capacity, supporting decision-making, and safeguarding individuals’ rights:

Through these measures, {{org_field_name}} fosters a culture of respect for autonomy and careful adherence to the MCA in all aspects of care.

4. Assessing Mental Capacity

Assessing a person’s mental capacity is a fundamental responsibility in ensuring that individuals receive safe, ethical, and legally compliant care (aligned with CQC’s Regulation 12: Safe Care and Treatment, which requires us to prevent avoidable harm through proper assessment and decision-making practices)cqc.org.uk. Conducting capacity assessments allows us to determine whether a service user is able to make specific decisions about their own care and treatment, and to ensure that if decisions are made on their behalf, those decisions are in the person’s best interests and duly documented.

Under the Mental Capacity Act 2005, an individual’s ability to make decisions should always be presumed unless proven otherwise. In practice, this means we never assume a lack of capacity based on a person’s age, appearance, diagnosis, or condition. Instead, we only initiate a capacity assessment when we have reasonable cause to believe the person may not fully understand or weigh up a particular decision. Any assessment must be specific to the decision at hand and to the time the decision needs to be made.

At {{org_field_name}}, all staff involved in care provision receive specialist training in how to carry out mental capacity assessments correctly. We have a clear process to follow whenever there are doubts about a person’s capacity for a given decision, ensuring consistency and legal compliance.

4.1. When a Capacity Assessment is Required

A mental capacity assessment should be conducted only when there is a reasonable belief that a person may not be able to make a particular decision at the time it needs to be made. Some situations or conditions that might trigger an assessment include, for example:

Crucially, capacity is decision-specific and time-specific. A person might be perfectly capable of deciding some matters but not others. For example, an individual could manage personal daily choices (what to wear or eat) but not grasp the complexities of a serious medical treatment decision. Or someone might lack capacity during a period of acute illness but regain capacity after recovery.

Typical decisions that would require a capacity assessment (rather than assuming capacity) include, but are not limited to:

If there is doubt about the person’s ability to understand, remember, weigh, or communicate regarding these kinds of decisions, a formal capacity assessment is warranted.

4.2. The Two-Stage Capacity Assessment

When an assessment is necessary, our staff follow the MCA’s two-stage test to determine if the person truly lacks capacity for the specific decision:

To lack capacity, the impairment identified in Stage 1 must be the reason the person cannot perform these functions. For instance, a person with advanced dementia may not understand or retain information about a complex decision, or someone in a psychotic state may understand information but be unable to weigh it rationally due to delusions. Each of the above abilities is assessed in the context of the decision: we explain information in simple terms and check comprehension, we may ask the person to repeat back or paraphrase to check retention, discuss potential choices to see if they can compare options, and ensure they have a way to express a choice.

Outcome: If the individual cannot do one or more of those four tasks because of the impairment or disturbance, then they are deemed unable to make that decision (i.e. they lack capacity for it at that time). If they can do all four, or if their difficulties are not due to a mental impairment, then they are considered to have capacity for the decision, even if their decision seems unwise to others.

Our staff document the findings of both stages. If capacity is lacking, we then move on to make a best interests decision (Section 5). If capacity is present, the person’s decision—whatever it may be—will be respected.

4.3. How Our Organisation Ensures a Fair and Legal Process

At {{org_field_name}}, we take a person-centred and rigorous approach to capacity assessments, ensuring that individuals are given every possible opportunity to make their own decisions before we conclude that they lack capacity. To achieve a fair and lawful assessment process, we:

By following these practices, we ensure that our capacity assessments are fair, transparent, and in line with the law. They respect the individual’s rights and are robust enough to withstand scrutiny (for instance, by the Court of Protection or CQC inspectors). Importantly, they also lay the groundwork for any subsequent best interests decisions by clearly establishing whether the person could or could not decide for themselves.

4.4. Who Conducts a Capacity Assessment?

In many cases, trained care staff at {{org_field_name}} can carry out capacity assessments as part of routine care (for day-to-day decisions or care-related decisions within our service). We ensure these staff have appropriate training and guidance from senior staff or our Mental Capacity Lead. However, for more complex or serious decisions, the assessment may need to involve, or be led by, a professional with specific expertise:

Our Registered Manager or designated Mental Capacity Lead oversees the quality of capacity assessments. They provide support to staff, review documentation, and, if needed, arrange for external assessments (for instance, a psychologist’s evaluation) to inform the capacity determination.

4.5. The Role of the Court of Protection

The Court of Protection is a specialist court in England and Wales that deals with issues relating to people who lack capacity. {{org_field_name}} seeks to resolve capacity and best interests matters without court involvement whenever possible, through careful adherence to the MCA and by involving all relevant parties. However, in certain situations, court involvement is necessary or advisable:

If a person using our service requires such legal intervention, {{org_field_name}} will work closely with social services, the person’s family/advocates, and legal professionals to make an application to the Court of Protection. We ensure that all necessary evidence (capacity assessments, care plans, risk assessments, etc.) is gathered to support the court’s decision-making. While awaiting court decisions, we continue to do everything in the person’s best interests and take interim measures to keep them safe and protect their rights (this might include, for example, applying interim safeguards or adhering to any urgent authorisations if applicable).

4.6. Summary of Capacity Assessment Process

Mental capacity assessments are an essential part of our duty of care. They ensure that each service user is supported to make their own choices whenever possible, and that if we must step in to decide, we do so lawfully and with the person’s welfare foremost. In summary, our approach to capacity assessment means:

Through this process, {{org_field_name}} upholds the highest standards of care and regulatory compliance (meeting the expectations of CQC Regulation 11: Need for Consent and Regulation 9: Person-Centred Care). Most importantly, we protect the rights, safety, and dignity of those we support, ensuring they are not restricted or overridden unless absolutely necessary.

5. Best Interests Decision-Making

When a person is found to lack the capacity to make a particular decision, the Mental Capacity Act 2005 requires that any decision made or action taken on their behalf is done in their best interests. This best interests principle is central to protecting individuals who cannot consent, and it ensures the person’s rights, wishes, and well-being remain central to the decision-making process. In essence, a best interests decision is the next step after determining lack of capacity – it is how we do what is best for the person, as if they were able to choose for themselves.

At {{org_field_name}}, we follow a structured, person-centred approach to best interests decision-making. This approach is designed to respect the individual’s dignity, autonomy, and unique preferences while also prioritising their health, safety, and overall well-being. Our procedures align with CQC Regulation 9 (Person-Centred Care), ensuring that care and treatment continue to reflect what matters to the person, as well as with Regulation 11, ensuring decisions are made properly when consent is not obtainable.

5.1. Considering All Relevant Factors

Making a best interests decision involves taking into account all relevant factors about the person and the specific situation. We essentially try to imagine the decision from the person’s perspective (if they had capacity) and from a holistic view of their life. Factors we consider include:

We thoroughly document all these considerations in a Best Interests Decision record. This written record demonstrates that the decision was made in line with legal requirements and ethical principles, showing anyone reviewing it (like family, CQC inspectors, or the Court of Protection) that we followed a proper process.

5.2. Involving the Individual in Decision-Making

A key tenet of person-centred care (and a requirement under both the MCA and the Care Act’s well-being approach) is that the individual is involved as much as possible in any decisions affecting them, even if they cannot make the final decision themselves. Lack of capacity does not mean lack of voice. We take steps to enable the person to participate and express their feelings about the matter at hand:

By ensuring the individual remains at the heart of the process, we honor their dignity and rights. Our staff are trained to take time and use creativity in engaging the person, so that even when the final decision is made by others, it reflects as much as possible the person’s own will and feelings.

5.3. Consultation with Family Members, Advocates, and Others

Best interests decisions must involve the right people to build a complete picture of what is best for the individual. We consult widely (while respecting confidentiality and only involving those who should be involved):

All these consultations are logged in our decision records. While consensus is sought, it’s not always possible. If family members disagree among themselves or with professionals on what is best, we will arrange meetings (case conferences) or mediation if needed (see 5.7 below on disputes). Ultimately, we as the care provider must make a decision or seek a court ruling if agreement can’t be reached.

Importantly, the best interests decision is not a vote – it’s about the quality of considerations, not quantity of people for/against. The decision maker (e.g. our Registered Manager or keyworker, depending on the situation, or an attorney if one is empowered) will weigh all views but must make an objective judgment about what best serves the person.

5.4. Exploring the Least Restrictive Option

The MCA and good practice require that, among the possible options for a person who lacks capacity, we choose the option that least restricts the person’s freedom and rights, while still meeting their needs. This echoes one of the MCA principles and also aligns with CQC Regulation 13 (Safeguarding from Abuse and Improper Treatment) which prohibits excessive or unnecessary restraint or restrictions.

For example:

At {{org_field_name}}, we actively encourage positive risk-taking and autonomy. “Least restrictive” doesn’t mean neglecting safety – it means carefully balancing safety with freedom. We ask at every decision: Is there a way to achieve the desired benefit that puts fewer limits on this person’s life? If yes, we prefer that way. If not, we ensure the restriction is proportionate and only as long as necessary.

We also recognize that “least restrictive” ties directly into promoting well-being (Care Act principle) – because overly restrictive care can harm a person’s emotional well-being and sense of self. By minimizing restrictions, we enhance their quality of life.

5.5. When is an Independent Mental Capacity Advocate (IMCA) Required?

Independent Mental Capacity Advocates (IMCAs) are a safeguard built into the MCA to ensure that people who have no one else to speak for them still have an independent voice in critical decisions. By law, an IMCA must be involved if:

For {{org_field_name}}, this means if we have a service user with no close family/friends, and we are considering moving them to a different service or there’s a major medical intervention needed (like an operation), we will notify the relevant authority to appoint an IMCA. The IMCA’s role is to meet with the person, get to know their wishes, feelings, beliefs and values, and ensure these are taken into account. They can also challenge the decision-maker if they feel the decision isn’t in the person’s best interests.

We liaise with local IMCA services promptly whenever required, providing them with necessary information and access to the person. We also give weight to the IMCA’s report or representations in our decision-making. In our records, we note the involvement of the IMCA and how their input influenced the final decision. This demonstrates compliance with our legal obligations under the MCA and shows CQC or others that no decision of the specified types was made in isolation, even for individuals without family.

5.6. Documentation and Accountability

All best interests decisions must be clearly documented to provide evidence that they were made correctly and lawfully. Our best interests decision record typically includes:

At {{org_field_name}}, these records are stored securely in the person’s care file. They are accessible to the care team and management, and we inform the person’s family or representatives of the outcome (unless there’s a reason not to, like a safeguarding concern involving them). Proper documentation ensures accountability – anyone questioning the decision later can see the thorough process we followed.

All documentation is handled in line with data protection (GDPR) requirements. While transparency is important, we also ensure only those who have a right or need to see these records can access them, to protect the person’s privacy.

5.7. Disputes and Legal Intervention

Despite following a careful process, there can sometimes be disagreements about a person’s best interests. Common sources of dispute might include: family members disagreeing with each other or with the care team, the person (if they have some understanding) resisting the decision, or differing professional opinions. Our approach to disputes is:

Throughout any dispute, our priority is the safety and well-being of the service user. We take interim steps to ensure they are not at risk. For instance, if the dispute is about moving someone, we won’t move them until resolved, and we’ll ensure their current care is as safe as possible in the meantime.

{{org_field_name}} works proactively to avoid conflicts by involving people early and being transparent. However, we never compromise the service user’s best interests due to pressure from others – if we believe an action is necessary to prevent harm (or that an action suggested by others would cause harm), we will stand by that position, seek legal guidance, and do everything through proper channels to protect the individual.

5.8. Summary

Best interests decision-making is a critical process in ensuring that individuals who lack capacity are treated fairly, ethically, and in accordance with the law. To summarize our approach at {{org_field_name}}:

By following these steps, our staff ensure that even when a service user cannot decide for themselves, the care and support they receive is what they would most likely have chosen and is truly focused on their best interests. This not only keeps us compliant with the MCA and CQC regulations (notably Reg 11 and Reg 9), but fundamentally it is how we show respect and compassion for those in our care.

6. Deprivation of Liberty Safeguards (DoLS) in Supported Living

6.1. Understanding Deprivation of Liberty

The Deprivation of Liberty Safeguards (DoLS) is a legal framework (under the MCA 2005) designed to protect individuals who lack capacity and who may need to have their freedom restricted for their own safety or well-being. Under human rights law (Article 5 of the European Convention on Human Rights), everyone has the right to liberty, so if we deprive someone of their liberty, it must be done lawfully and with proper safeguards. DoLS provides those safeguards, ensuring that any restrictions on a person’s freedom are necessary, proportionate, and authorized.

A deprivation of liberty has been defined by the courts (the “Acid Test” from the Cheshire West case) essentially as a situation where a person is under continuous supervision and control and not free to leave their environment, due to measures in place for their care. In practical terms, this could include scenarios like a person being kept in a care setting with locked doors, or under constant monitoring, and if they left or tried to leave, they would be brought back.

Historically, DoLS applications and authorisations only applied to care homes and hospitals. In those settings, if someone needed to be deprived of liberty, the care provider would apply to the local authority (the “Supervisory Body”) for a DoLS authorisation. However, people in supported living or other community settings can also be deprived of their liberty – but because supported living is not a registered care home or hospital, the DoLS process is different. In such cases, an application must be made to the Court of Protection to lawfully authorize the deprivation.

At {{org_field_name}}, we are committed to ensuring that any restrictions placed on service users are lawfully justified, properly recorded, and the least restrictive possible, in accordance with legal requirements and CQC Regulation 13 – Safeguarding service users from abuse and improper treatment. Unlawful deprivation of liberty is a form of abuse; thus, we treat this area with utmost seriousness.

Key points we emphasize to staff about DoLS: a deprivation of liberty should be avoided unless absolutely necessary, and if it is necessary, it must go through the proper legal process. We do not “imprison” or restrain people just because it’s easier – any such measures must be last resort and for the person’s benefit, never for staff convenience.

6.2. When DoLS Applies in a Supported Living Setting

DoLS (or the need for a court-authorised deprivation of liberty) might apply in our supported living context when both of the following are true:

Some signs that a supported living care plan might constitute a deprivation of liberty include:

It’s important to note that not all restrictions equal a deprivation of liberty. Many care plans include some restrictions (like not allowing a person access to knives if they are at risk, or asking them to be accompanied outside for safety). The threshold is when those restrictions cumulatively amount to “continuous supervision and control” and “not free to leave.” It often involves degree and intensity.

If we identify that a service user’s care plan has elements like the above, we must consider that a DoLS authorisation (via court) is likely needed. At {{org_field_name}}, we would immediately start the process described in 6.3 if we believe we are (or will be) depriving someone of their liberty. We also continuously look to see if any care plan could be made less restrictive to get below the threshold of deprivation, if possible (this is covered in 6.4).

6.3. The Legal Process for Authorising a Deprivation of Liberty in Supported Living

Unlike a care home or hospital (where the local authority can issue a DoLS authorisation), in a supported living setting the Court of Protection is the only body that can legally authorise a deprivation of liberty. Therefore, if we determine that a service user’s current or proposed care plan amounts to a deprivation of liberty, we must work with the funding authority (usually the local authority or sometimes the NHS if they commissioned the care) to apply to the Court of Protection.

At {{org_field_name}}, we follow a structured process to ensure full compliance with the law:

Step 1: Assess if a deprivation of liberty might be occurring.
We do a careful review of the person’s care plan and daily support to see if it meets the “continuous supervision and control + not free to leave” criteria. We also ensure the person indeed lacks capacity to consent to these arrangements (if they don’t lack capacity, DoLS cannot be applied – instead, if they object to restrictions we’d need to find a less restrictive alternative or consider other legal frameworks like the Mental Health Act if applicable). We ask questions like: Could the person go out whenever they want (with or without staff)? If they said “I want to leave now,” what would we do? How constantly are we monitoring them? This review involves the key staff working with the individual, and managerial oversight.

We also check that all lesser measures have been tried or considered. If not, we implement those to see if we can avoid depriving liberty (because maybe a slightly lower level of restriction can keep them safe enough).

Step 2: Consult with the individual and their circle.
Before formal application, we discuss with the service user (to the extent possible) what we think is needed for their safety. We also inform their family, any LPA or deputy, and social worker/care manager that we believe a DoLS authorisation is needed. Often, social services will take the lead in making the application to court, but as the care provider we supply evidence. We ensure everyone understands that we are seeking legal authorisation not to be punitive, but to protect the person’s rights by having an external tribunal approve and oversee the restrictions.

We also involve an IMCA at this point if required (if the person has no one else to represent them). The IMCA or any advocate can help put forward the person’s perspective in the application process.

Step 3: Submit an application to the Court of Protection.
Typically, the local authority (as the commissioner or responsible body) will make the application with input from us. In some cases, {{org_field_name}} might be a joint applicant or provide a statement. The application will include detailed information such as:

Step 4: Implement safeguards while awaiting authorisation.
After application, it may take time for the court to process (especially if it’s contested). During this period, we continue to care for the person as needed for safety, documenting everything and making sure we are not doing more than absolutely necessary. We often operate under the assumption that the court will approve if we’ve followed MCA principles, but we remain vigilant. If the court asks for adjustments or for additional evidence, we cooperate fully.

Step 5: Once authorised, adhere to the conditions and keep under review.
If the Court of Protection issues an order authorising the deprivation of liberty, they may include certain conditions – for example, requiring regular reports, or that we attempt certain therapeutic measures to try to reduce the restriction in the future. We incorporate any such conditions into the care plan immediately and ensure staff are aware. We then treat this authorisation as a living document – regularly reviewing the care plan to see if it’s still needed as is.

Step 6: Renew or discharge as appropriate.
Court authorisations for deprivation of liberty are typically time-limited (often 12 months, but the court might set shorter). Before it expires, we evaluate if it’s still needed. If yes, we or the local authority will return to court to renew. If not, we inform the court that circumstances have changed and the deprivation has ended.

Throughout this process, communication is key – with the person (as far as they can understand), with their family, and with all professionals involved. It’s a distressing concept to families to hear “your loved one is being deprived of liberty,” so we explain carefully that it’s about legal safeguards for necessary care, and that we will keep striving to lift those restrictions if possible.

By following this rigorous legal process, we ensure that any deprivation of liberty in our service is lawful, justified, and transparently managed. It protects the individual’s rights by involving an external judicial oversight, and it protects our staff and organisation by ensuring we have the authority to carry out care in this way.

6.4. Ensuring Least Restrictive Practices

Even when a deprivation of liberty is authorised, our duty (under the MCA and good practice) is to continue seeking ways to reduce restrictions and pursue the least restrictive approach. Authorisation is not a green light to be complacent; it’s something we constantly strive to work back from if possible.

At {{org_field_name}}, we:

For clarity, some practical examples of how we apply least restrictive practice in daily supported living:

By taking such approaches, we ensure that deprivation of liberty is truly a last resort and, if it’s in place, that it’s not more restrictive than it has to be. This commitment also prepares us for the future changes under LPS (Liberty Protection Safeguards), which also stress a more flexible, person-centred approach.

6.5. The Role of the Court of Protection and Lasting Powers of Attorney (LPA)

As discussed, the Court of Protection plays a central role in authorising deprivations of liberty for individuals in supported living. But beyond DoLS, the Court of Protection can also be involved in other serious decisions or disputes regarding someone who lacks capacity:

Now, regarding Lasting Powers of Attorney (LPA): These are legal documents made by a person while they have capacity, appointing someone (an attorney) to make decisions for them if they later lose capacity. There are two types: one for Health and Welfare, and one for Property and Financial Affairs. In our context, if a service user has made an LPA for Health and Welfare and it’s registered, then the attorney has legal authority to make certain personal welfare decisions (like about medical treatment or daily routine) on the person’s behalf, provided the person lacks capacity for that decision at that time.

However, it’s important to note: No LPA (and no Deputy) can authorize a deprivation of liberty on their own. Even if someone’s spouse is their welfare LPA, and the spouse agrees that a locked door is needed, legally we still need a court authorisation for the deprivation aspect. The LPA’s consent alone is not sufficient for depriving liberty (though the LPA’s views carry significant weight in best interests consideration). We would collaborate with an LPA in making care decisions, but for DoLS we go to court regardless.

At {{org_field_name}}, we welcome and respect any involved LPA or Deputy. We treat them as we would the person themselves in terms of rights to information and involvement in care planning (to the extent of their authority). For instance, a Health and Welfare LPA can consent to or refuse medical treatment on the person’s behalf (within any limits of their power), so we would consult them when those decisions arise. If any decision exceeds their authority or if we have concerns an LPA is not acting in the person’s best interests, we would seek guidance (potentially from the Office of the Public Guardian or Court).

We also ensure that families know about the option of LPAs before their loved ones lose capacity (where applicable), as part of planning for the future. It’s part of promoting the person’s autonomy – encouraging them to appoint someone they trust while they are able.

In summary, the Court of Protection is our legal safety net for complex issues, and LPAs/Deputies are important partners in decision-making when they exist. We work closely with both to ensure decisions about care and liberty are made lawfully and with the person’s rights at the forefront.

6.6. Staff Training and Responsibilities

Ensuring compliance with DoLS (and the broader MCA) requires that all care staff understand their legal responsibilities and know how to act when they suspect a deprivation of liberty or when caring for someone under a DoLS authorisation. At {{org_field_name}}, we provide comprehensive training and clear guidance:

By empowering staff with knowledge and clear expectations, we foster a culture where service users’ rights are respected and upheld at all times. We want staff to be confident in supporting freedom and also confident in raising the alarm if they think we are (or might be) unlawfully depriving someone of liberty.

6.7. Monitoring and Compliance

We maintain robust monitoring procedures to ensure that all deprivation of liberty authorisations are reviewed regularly and that our practices remain lawful and appropriate. Our approach includes:

By proactively monitoring compliance, we protect the rights and welfare of individuals in our care while maintaining high professional standards. It ensures that a deprivation of liberty is never “set and forgotten.” Instead, it’s a constantly re-evaluated scenario with the hope that one day the person might no longer need those restrictions (e.g., through improvement, adaptation, or changes in circumstances).

We are also transparent with regulators: if CQC or the local authority asks about DoLS cases, we have up-to-date records and analysis to share, demonstrating our oversight.

6.8. Anticipating Future Changes – The Liberty Protection Safeguards (LPS)

The Liberty Protection Safeguards (LPS) is the upcoming system intended to replace DoLS. As of the time of this policy, LPS has not yet been implemented, but it is on the horizon. LPS will broaden and streamline the process of authorising necessary deprivations of liberty across various settings (including supported living, which will be explicitly covered without needing Court of Protection in every case).

Key anticipated changes under LPS include:

At {{org_field_name}}, we are preparing for these changes. We stay informed through training sessions, webinars, and guidance from our local authority partners. We have begun training staff on the principles of LPS so that when it takes effect, our team understands terms like “necessary and proportionate” assessment, and knows about the new process (e.g., that we might have to notify the Responsible Body and supply assessment info for an LPS authorisation). We update our policies and care planning documentation to align with what LPS will require (for instance, incorporating required assessments into our care plan evaluation process).

By being proactive about LPS, we demonstrate our commitment to continuous improvement and compliance with the evolving legal framework. When LPS is implemented, we will update this policy accordingly; until then, we operate under DoLS but with an eye on best practices that LPS promotes (like more inclusive consultation and regular reviews, which we already do).

7. Staff Training and Responsibilities

All employees receive comprehensive training on the Mental Capacity Act 2005, best interests decision-making, and DoLS. This ensures they understand their legal and ethical responsibilities when supporting individuals who may lack capacity. Our training and ongoing supervision cover the following key points for staff:

Managers have additional responsibilities: they oversee that capacity assessments and best interests decisions are done correctly and timely. They double-check documentation and guide staff through complex cases. We have a designated Mental Capacity Lead on staff (or access to a consultant) who stays particularly current on MCA/DoLS law and can advise on tricky situations. This lead may liaise with external professionals (social workers, psychiatrists, etc.) for further input, and they may attend local MCA forums or networks to share knowledge.

All of this training is not a one-off. We provide refreshers at regular intervals (e.g., annually or when laws update) and incorporate discussions of capacity and consent into team meetings. New employees get this as part of their induction before working unsupervised with service users.

In summary, staff at all levels are made aware that supporting people with impaired capacity is a special duty – it requires knowledge, sensitivity, and a strong moral commitment to doing right by the person. We foster an environment where staff feel confident and supported in making the correct decisions and know when to seek guidance.

8. Monitoring and Compliance

At {{org_field_name}}, we are committed to ensuring that our approach to mental capacity and deprivation of liberty is not only legally compliant but also aligned with best practices in ethical, person-centred care. To achieve this, we have robust monitoring and governance systems in place that allow us to review and refine our policies and procedures on an ongoing basis.

Regular audits, active management oversight, and collaboration with external agencies ensure that all decisions regarding capacity assessments, best interests, and DoLS are handled correctly. By proactively monitoring compliance, we protect the rights and freedoms of the individuals in our care while maintaining high professional standards. This approach also satisfies CQC’s expectations under Regulation 17 (Good Governance), demonstrating that we have effective systems to assess and improve the quality and safety of our services.

8.1. Ongoing Review of Care Plans and Risk Assessments

A fundamental part of compliance is making sure each service user’s care plan remains up-to-date, especially regarding their capacity and any restrictions:

By regularly updating care plans in this way, we ensure we are only applying interventions that remain necessary and appropriate. It prevents “set and forget” care – instead, there is a loop of planning, acting, reviewing, and adjusting. This is crucial for respecting individuals’ evolving needs and rights. It also means that if CQC or any inspector looks at a care plan, they will see recent review notes, demonstrating our active management.

8.2. Auditing Mental Capacity and Best Interests Decision-Making

To maintain high standards, we conduct focused audits on how we are implementing the MCA and DoLS:

Audits are conducted by senior managers and our Mental Capacity Lead, ensuring a fresh set of eyes on these critical processes. The findings are used to identify any areas for improvement, which could include additional staff training (if we see common mistakes or gaps in knowledge), updates to forms/templates (if staff find current documentation unclear, we improve it), or system changes (for example, if we find that emergency situations aren’t being captured, we might introduce a prompt in our incident forms to consider MCA/DoLS implications).

8.3. Ensuring Staff Compliance with Legal Guidelines

Human error or lapses can happen, so we actively ensure that each staff member is following the MCA and our internal policies:

Our goal, however, is to create a learning culture rather than a punitive one. We want staff to feel they can admit a mistake or confusion and get help to do it right next time. By combining support (training, supervision) with accountability, we maintain compliance while helping our staff grow in competence.

8.4. Working with External Regulators and Safeguarding Authorities

Compliance is also reinforced by engaging with outside oversight. We work closely with external bodies to ensure we meet all expectations:

By working collaboratively with these external entities, we not only stay compliant but also continuously improve our service through their insights. It also offers an additional layer of protection for our service users – multiple eyes ensuring their rights are respected.

8.5. Keeping Up to Date with Legislative Changes

The landscape of law and guidance around mental capacity and deprivation of liberty can evolve. It’s crucial that {{org_field_name}} stays current so our policies remain valid and our care remains excellent. We keep up to date with:

Whenever there is an update or we identify a needed change, we update our policies and procedures and communicate those changes to staff promptly. This might be done through staff meetings, internal memos, or additional training sessions for significant changes. For example, as LPS approaches, we might run a workshop for all staff to familiarize them with how LPS will work differently from DoLS.

By staying current, we demonstrate due diligence and ensure continuous compliance. It also means our service users benefit from the most up-to-date protections and approaches available.

8.6. Internal Reviews and Continuous Improvement

Finally, we undertake internal reviews of our overall approach to mental capacity and DoLS to see if it’s effective and where we can do better. At least annually, the management team (including the Registered Manager and the Mental Capacity Lead) review this policy and our practice against a set of quality indicators:

The results of these reviews are used to update our action plans. For example, if a trend is noticed that some staff confuse “unwise decision” with “no capacity,” we might introduce a quick reference chart for staff or more scenarios in training to clarify that.

Any gaps or weaknesses identified lead to concrete improvements: policy updates, new training modules, or enhanced managerial oversight in certain areas. This continuous improvement cycle ensures that our mental capacity and DoLS practices remain not just compliant, but exemplary and responsive to the needs of those we support.

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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