MCA and DoLS recording

The MCA rests on five statutory principles in s1. The person is assumed to have capacity unless established otherwise. All practicable steps to help the person decide must be taken before treating them as unable to decide. An unwise decision is not the same as lacking capacity. Any act done for someone who lacks capacity must be in their best interests. The least restrictive option must be considered.

Capacity is assessed under s2 and s3: the two-stage test asks whether there is an impairment of mind or brain, and if so, whether that impairment causes the person to be unable to understand, retain, weigh, or communicate the decision in question. The test is decision-specific and time-specific.

Where the person lacks capacity for the decision, s4 sets out the best-interests determination: consider all relevant circumstances, consider the person's past and present wishes and feelings, consult anyone named by the person to be consulted, anyone caring for the person or interested in their welfare, any registered Lasting Power of Attorney donee, and any court-appointed deputy. Section 5 protects from liability the everyday acts of care and treatment done for a person who reasonably appears to lack capacity, provided the act is in their best interests. Sections 24 to 26 cover advance decisions to refuse treatment.

DoLS in Schedule A1 provide the standard authorisation for any deprivation of liberty in care-home or hospital settings. The Liberty Protection Safeguards (LPS) regime in the Mental Capacity (Amendment) Act 2019 will replace DoLS; LPS implementation remains deferred at the page review date and DoLS stays in force.

CQC inspects MCA compliance through Reg 11 (consent) and Reg 13 (safeguarding) of the 2014 Regulated Activities Regulations. The inspector samples capacity assessments and best-interests records for specific decisions and tests whether the two-stage test ran properly, whether the reasoning is recorded, and whether the decision-maker considered the section-4 factors. For services that attract DoLS, the inspector samples authorisation records against the supervisory-body letters, the urgency-procedure use, the consultation evidence, and the review cadence on each authorisation.

CQC also expects MCA training appropriate to role: Level 1 awareness for any staff with service-user contact, Level 2 practice for clinical and direct-care staff, Level 3 for the named MCA lead. DoLS training sits separately for services that attract the regime.

The MCA gaps that recurred in inspections over thirteen years: capacity assessments recorded as a single global “has capacity” or “lacks capacity” statement rather than for the specific decision in question (capacity is decision-specific; a person may have it for one decision and not for another, on the same day); best-interests decisions recorded as “in best interests” without the s4 reasoning trail (the relevant circumstances considered, the consultations completed, the least-restrictive option considered); failure to check the Office of the Public Guardian register for a registered LPA before making a best-interests decision (where an LPA donee exists for the relevant decision, the donee's decision applies, not the best-interests team's); DoLS authorisations allowed to expire without renewal review; and the unwise-decision-equals-lacks-capacity confusion, which still surfaces frequently and is one of the most common Reg 13 findings for services with capacity issues.

MCA decisions and DoLS authorisations sit primarily in the provider's clinical record system rather than the Verivius governance platform; the platform records the safeguarding-side cross-link via the safeguarding-reporting lifecycle and the Reg 18 notification trail where a DoLS authorisation triggers a CQC notification.

Sample policy templates: MCA capacity and consent · Reg 11 Consent.