1. 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.
2. Sources to verify before adoption
- Mental Capacity Act 2005: https://www.legislation.gov.uk/ukpga/2005/9/contents
- Mental Capacity Act Code of Practice, GOV.UK: https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice
- Deprivation of Liberty Safeguards resources, GOV.UK: https://www.gov.uk/government/collections/dh-mental-capacity-act-2005-deprivation-of-liberty-safeguards
- DoLS Code of Practice source material, GOV.UK collection: https://www.gov.uk/government/collections/dh-mental-capacity-act-2005-deprivation-of-liberty-safeguards
- Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, Regulation 11: https://www.legislation.gov.uk/uksi/2014/2936/regulation/11
- Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, Regulation 18: https://www.legislation.gov.uk/uksi/2014/2936/regulation/18
- CQC guidance on Regulation 18 staffing and training: https://www.cqc.org.uk/guidance-providers/regulations/regulation-18-staffing
3. Scope
This policy applies to adults using the Service who may lack capacity for a specific decision at a specific time.
It applies to:
- daily care and support decisions
- accommodation and residence decisions
- care-plan restrictions
- personal care, medicines, nutrition and hydration decisions
- contact, community access and safety decisions
- best-interest decisions made by staff or managers
- DoLS applications for people living in care homes
- Court of Protection referral consideration where DoLS cannot authorise the arrangement
The Service does not treat a diagnosis, disability, age or communication need as proof that a person lacks capacity.
4. The five MCA principles
Staff use the five Mental Capacity Act principles as the starting point for every capacity decision.
- A person is assumed to have capacity unless assessment shows otherwise.
- A person is supported to make their own decision before anyone concludes they cannot.
- A person is not treated as unable to decide because they make a decision others see as unwise.
- Any act or decision made for a person who lacks capacity is made in their best interests.
- Any act or decision is the least restrictive option that can meet the need.
The Service verifies the exact statutory wording against the current Mental Capacity Act 2005 before adopting this section.
5. Capacity assessment process
Capacity assessment is decision-specific and time-specific.
Before assessing capacity, staff:
- identify the exact decision
- check whether the decision is needed now
- give information in a format the person can understand
- offer communication support
- consider whether pain, distress, medication, infection, fatigue or environment may affect the person's decision-making
- involve people who know the person well where appropriate and lawful
The assessor records:
- the decision being assessed
- why capacity is in doubt
- what support was offered
- what information the person understood
- how the person weighed the information
- how the person communicated the decision
- whether capacity was present or absent for that decision at that time
- when the decision should be reviewed
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.
6. Best-interest decision-making and recording
Where a person lacks capacity for the decision, staff hold a best-interest decision process.
The record includes:
- the decision needed
- the capacity assessment outcome
- the options considered
- the person's past and present wishes, feelings, beliefs and values where known
- views from family, carers, representatives, attorneys or deputies where lawful and relevant
- risks and benefits of each option
- how the option chosen is least restrictive
- who made the decision
- who was consulted
- how and when the decision will be reviewed
Staff do not use a best-interest decision to override a valid advance decision or a person with lawful authority to decide.
7. IMCA referral pathway
The Service considers Independent Mental Capacity Advocate referral where the current MCA framework requires it.
The Registered Manager or delegated lead:
- checks whether the person has family, friends, attorney or deputy who can be consulted
- identifies whether the decision type triggers IMCA consideration
- records the reason for referral or the reason referral is not required
- contacts the local IMCA service using the current local authority route
- shares relevant records securely
- records IMCA advice and how it affected the decision
Staff verify the exact referral criteria against the current Mental Capacity Act Code of Practice and local IMCA pathway before adoption.
8. 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:
- restrictions and supervision arrangements are reviewed before application
- less restrictive alternatives are considered and recorded
- the person and those important to them are consulted where appropriate
- the correct standard or urgent DoLS route is used
- the application is made to the correct supervisory body
- the Service uses the current local authority forms and guidance
- the care plan records the application, authorisation outcome and any conditions
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.
9. 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:
- why urgent authorisation is considered necessary
- the restrictions already in place or about to start
- why less restrictive options cannot meet the immediate risk
- the standard authorisation request linked to the urgent authorisation
- advice sought from the supervisory body where needed
- the exact expiry date and any extension decision from the authorising source
The Service verifies the current urgent and standard authorisation process before adoption.
10. Breach handling
If staff identify an unauthorised deprivation of liberty, they treat it as a governance and safeguarding concern.
The Registered Manager:
- makes the person safe
- reviews and reduces restrictions where possible
- records the concern on the incident register
- seeks advice from the supervisory body or legal adviser
- submits the correct DoLS application or Court of Protection route where required
- considers safeguarding referral
- considers duty of candour where the threshold may be met
- records learning and assigns improvement actions
The Service does not wait for audit to correct an unauthorised deprivation.
11. Staff training requirements
The Service maps MCA and DoLS training to role.
- All staff receive induction on MCA principles, consent, restrictions and escalation.
- Care staff receive practical training on decision-specific capacity, daily choices and recording.
- Senior care staff receive training on capacity assessment evidence and best-interest recording.
- Managers and the safeguarding or MCA lead receive training on DoLS application, IMCA referral and breach handling.
Training records are maintained under Regulation 18 staffing and training expectations. The Service verifies current CQC and local authority training expectations before adoption.
12. Audit cadence
The Registered Manager audits MCA and DoLS records at least quarterly.
The audit sample includes:
- capacity assessments
- best-interest decisions
- restrictive care plans
- DoLS applications
- authorisation conditions
- IMCA referrals or decisions not to refer
- staff training records
- incidents involving unauthorised restriction
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.