Sample policy · Adult social care

Mental Capacity Act and DoLS policy (adult social care)

Statutory anchor: Mental Capacity Act 2005 (primary), with Deprivation of Liberty Safeguards provisions and the Human Rights Act 1998 (Article 5 ECHR). The engaged CQC regulation is Regulation 11 (need for consent), Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (SI 2014/2936). This policy also engages Regulation 18 (staffing) for training requirements. · primary source

1. What the regulation says

The Mental Capacity Act 2005 is the primary statute for this policy, and it is not held in the Verivius regulation manifest. The verbatim quote below is taken from the engaged CQC regulation, Regulation 11 (need for consent), which is the regulator's enforcement hook for capacity and consent. The Mental Capacity Act 2005 itself remains the source of the five principles, the capacity test, best-interest decision-making and the DoLS framework.

Care and treatment of service users must only be provided with the consent of the relevant person. (Reg 11(1): the headline duty)

The full text of Regulation 11 is at https://www.legislation.gov.uk/uksi/2014/2936/regulation/11. The full text of the Mental Capacity Act 2005 is at https://www.legislation.gov.uk/ukpga/2005/9/contents. Where this policy and the regulation or statute diverge, the live source wins.

2. Plain-English summary

You can only provide care or treatment with the consent of the relevant person. If the service user is 16 or over and lacks capacity, follow the Mental Capacity Act 2005. If Parts 4 or 4A of the Mental Health Act 1983 apply, follow that instead. Section 5 of the MCA (acts done in connection with care or treatment) still applies underneath.

3. Purpose

This policy sets out how the Service assesses capacity, supports decision-making, records best-interest decisions and applies for Deprivation of Liberty Safeguards authorisation where required.

The Service must verify this policy against the current Mental Capacity Act 2005, the Mental Capacity Act Code of Practice, DoLS Code of Practice material and local authority process before adoption.

4. Sources to verify before adoption

5. Scope

This policy applies to adults using the Service who may lack capacity for a specific decision at a specific time.

It applies to:

The Service does not treat a diagnosis, disability, age or communication need as proof that a person lacks capacity.

6. The five MCA principles

Staff use the five Mental Capacity Act principles as the starting point for every capacity decision.

The Service verifies the exact statutory wording against the current Mental Capacity Act 2005 before adopting this section.

7. Capacity assessment process

Capacity assessment is decision-specific and time-specific.

Before assessing capacity, staff:

The assessor records:

Where the decision is complex, high risk or disputed, the Registered Manager seeks senior clinical, social work or legal advice before the Service relies on the assessment.

8. Best-interest decision-making and recording

Where a person lacks capacity for the decision, staff hold a best-interest decision process.

The record includes:

Staff do not use a best-interest decision to override a valid advance decision or a person with lawful authority to decide.

9. IMCA referral pathway

The Service considers Independent Mental Capacity Advocate referral where the current MCA framework requires it.

The Registered Manager or delegated lead:

Staff verify the exact referral criteria against the current Mental Capacity Act Code of Practice and local IMCA pathway before adoption.

10. DoLS application process

The Service considers DoLS where a person lacks capacity to consent to the care or residence arrangement and the arrangement may amount to a deprivation of liberty in a care home.

The Registered Manager is responsible for ensuring that:

The Service does not restate DoLS statutory timescales in this template. Staff check the current DoLS Code of Practice, statutory forms and supervisory body guidance for the exact process and period.

Note on current law: whether a given arrangement amounts to a deprivation of liberty is now determined by a multifactorial assessment. Staff must not rely on the former "acid test" as a settled rule. See the note in the Sources and further reading section, and seek legal advice on individual cases while official guidance is awaited.

11. Urgent and standard authorisation

The Service uses a standard authorisation request where a deprivation of liberty is likely to be needed and can be planned.

The Service uses an urgent authorisation only where the current DoLS framework allows it and the deprivation cannot lawfully wait for the standard process.

For urgent authorisation, the Registered Manager records:

The Service verifies the current urgent and standard authorisation process before adoption.

12. Breach handling

If staff identify an unauthorised deprivation of liberty, they treat it as a governance and safeguarding concern.

The Registered Manager:

The Service does not wait for audit to correct an unauthorised deprivation.

13. Staff training requirements

The Service maps MCA and DoLS training to role.

Training records are maintained under Regulation 18 staffing and training expectations. The Service verifies current CQC and local authority training expectations before adoption.

14. Audit cadence

The Registered Manager audits MCA and DoLS records at least quarterly.

The audit sample includes:

Audit findings are recorded as improvement actions with an owner and review date.

Review cadence: annual or on regulatory change, whichever sooner. Owner: Registered Manager.

15. Sources and further reading

This template is based on CQC's guidance for providers and managers, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, and other topic-specific legislation and guidance listed below. It is a starting point for adaptation, not a substitute for legal, clinical, HR, safeguarding or specialist professional advice.

Note on the AGNI judgment (2 June 2026): the Supreme Court overruled the former "acid test" for deprivation of liberty. Whether arrangements amount to a deprivation of liberty is now determined by a multifactorial assessment, and a person who lacks MCA capacity can still give valid consent to confinement for Article 5 purposes. CQC's statement of 8 June 2026 confirms the judgment has immediate effect, that providers may need legal advice pending official guidance, and that the Mental Capacity Act 2005 and Regulation 11 requirements are unchanged. DHSC guidance on DoLS and Court of Protection cases is awaited. This Article 5 "valid consent" analysis applies only to deprivation-of-liberty assessment. It must not be read into Regulation 11 consent, MCA capacity assessment, or consent to care or treatment, which are unchanged.

16. When to seek further advice

Seek specialist advice where the issue involves serious harm, safeguarding, deprivation of liberty, restraint, children, professional misconduct, controlled drugs, radiation, termination of pregnancy, infection outbreak, water safety, employment dismissal, DBS barring referral, or regulatory enforcement.

17. Document control

Version Date Author Changes
v1 2026-06-10 Verivius (sample) Initial sample template, conformed to the Verivius policy standard.

This sample policy template was issued by Verivius. It is a template, not a substitute for legal advice or the tenant's own policy-development process. Where this template and live law or regulator guidance diverge, the live source wins.

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Last reviewed 10 June 2026