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.

5.1 Roles and responsibilities

Before adoption, the Service names the MCA and DoLS lead, deputy, out-of-hours decision maker, supervisory-body contact, IMCA route and legal-advice route. The Registered Manager records these local arrangements with the controlled policy.

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. The Service follows the DHSC guidance published on 15 June 2026 alongside the CQC statement and current local authority process. The 2008 DoLS Code of Practice was republished on 2 June 2026 but does not fully reflect the Supreme Court's 2026 judgment. Staff seek legal advice where the position remains uncertain.

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. Related policies and records

This policy should be read with:

The linked evidence trail includes the capacity assessment, best-interest record, restriction review, DoLS application, authorisation and conditions, representative details, IMCA decision, incident record and improvement action.

16. 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 2026 judgment: 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 may still be able to give valid consent to confinement for Article 5 purposes. CQC confirms that the judgment has immediate effect and that the Mental Capacity Act 2005 and Regulation 11 requirements are unchanged. DHSC's 15 June 2026 guidance sets out the factors providers should consider and advises referral to the local authority, Court of Protection or legal advisers where there is doubt. This Article 5 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.

17. 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.

18. Document control

Version Date Author Changes
v1.2 2026-07-21 Verivius (sample) Added named local roles, adoption decisions and linked companion policies and evidence records.
v1.1 2026-07-21 Verivius (sample) Replaced the pending-guidance wording with the DHSC guidance published on 15 June 2026 and clarified the status of the republished DoLS Code of Practice.
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 provider's own policy-development process. Where this template and live law or regulator guidance diverge, the live source wins.

What good looks like here

Written from an ex-CQC inspector's chair, but the point is safe, well-led care your team can stand behind. Each row shows what strong evidence looks like, what thin evidence looks like, and where the expectation comes from.

Deprivation of liberty in a care home is rarely something anyone decides. It accumulates. A keypad on the front door, a sensor mat, a member of staff who quietly walks alongside Mrs Doyle every time she heads for the lift, a line in her care plan saying she does not go out on her own since the fall. Each step is well meant, and together they can shape a life that nobody ever sat down and thought about. There is no bruise and no incident form here, so the only thing that shows a restriction was weighed rather than drifted into is the written trail: the decision named, the support offered, the less restrictive option tried first, and her own words about how she wants to live. Since the Supreme Court judgment of 2 June 2026 there is no single test to fall back on, and whether an arrangement deprives someone of their liberty is assessed on a multifactorial, contextual basis. That makes the reasoning more important rather than less, because there is no longer a shortcut to apply by rote. Services that write it down honestly tend to find they are restricting less, because having to explain why a woman cannot open her own front door is uncomfortable enough to send you looking for another way.

  1. Capacity is assessed for a specific decision at a specific time, rather than a person carrying a blanket 'lacks capacity' label. What goes wrong is capacity assumed absent because of a diagnosis, disability, age or communication need, rather than actually assessed, so a person loses decisions they could have made for themselves.

    Strong evidence: The capacity assessment record showing the exact decision, why capacity is in doubt, what support was offered, what information the person understood, how they weighed it, how they communicated, whether capacity was present or absent for that decision at that time, and the review date (Section 7), set against the principle that capacity is assumed and the scope statement that a diagnosis, disability, age or communication need is not proof of incapacity (Sections 5 and 6).

    Weak evidence: A care plan that opens with 'lacks capacity due to dementia' and never names an actual decision, so the label travels with the person from admission onwards. Or one capacity assessment done on the day someone moved in and still being leaned on months later for everything from personal care to a change of room, with the 'how the person weighed the information' section blank or filled in with the diagnosis again, nothing recorded about what communication support was offered, and no date set to look at it again.

    A legal duty. This comes from legislation that applies to your service, so meeting it is not optional. The exact provision is cited beneath the badge.

    Mental Capacity Act 2005 s.2(1) and s.2(3) (with s.1(2) and s.1(3)); binding on the provider via Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, reg 11(3)

  2. A person whose care arrangements may deprive them of their liberty has a live authorisation for that deprivation, through the Deprivation of Liberty Safeguards (DoLS) in a care home or through the Court of Protection where DoLS cannot authorise the arrangement, such as supported living or a person's own home, with any conditions met, and an unauthorised deprivation is corrected at once rather than left for the next audit. Where it goes wrong, someone is confined with no authorisation, on a lapsed authorisation, or living under authorisation conditions that are not being met, for instance conditions that never reached the staff on shift.

    Strong evidence: The DoLS application process recording restrictions reviewed, less restrictive alternatives considered, the correct supervisory body, and the care plan recording the application, authorisation outcome and any conditions (Section 10), alongside Court of Protection referral where DoLS cannot authorise the arrangement (Section 5), and the breach-handling route treating an unauthorised deprivation as a governance and safeguarding concern entered on the incident register, with the policy stating the Service does not wait for audit to correct it (Section 12).

    Weak evidence: A Deprivation of Liberty Safeguards tracker with expiry dates on it that nobody works to, so authorisations run out and are re-applied for later with nothing recorded in between about whether the arrangement still needs one. Conditions attached to an authorisation, such as supported access to the garden or a named person to be involved, left in the letter in the manager's office and never copied into the care plan, so the staff on shift have never read them. Weakest of all, a person living behind a keypad door with a member of staff alongside them whenever they head for it, and nothing on file showing anyone weighed whether that arrangement actually amounts to a deprivation of liberty, whether the person consents to it, or which route would authorise it if it does. In supported living or a person's own home, where the Safeguards cannot authorise anything, the same gap with no Court of Protection application and no record of the question being asked.

    A legal duty. This comes from legislation that applies to your service, so meeting it is not optional. The exact provision is cited beneath the badge.

    Mental Capacity Act 2005 s.4A and Schedule A1 paras 24 and 53(2); s.16(2)(a) for the Court of Protection route

  3. Where a person lacks capacity, a recorded best-interest process sits behind each significant decision and shows the least restrictive option was chosen, not just that staff decided. Where this fails, a restriction is imposed with no best-interest record, or a valid advance decision or lawful attorney is overridden.

    Strong evidence: The best-interest record listing the options considered, the person's past and present wishes, feelings, beliefs and values, who was consulted, how the chosen option is least restrictive and who made the decision (Section 8), including the bar on using a best-interest decision to override a valid advance decision or a person with lawful authority to decide.

    Weak evidence: A single line in the daily notes saying 'agreed this is in her best interests', signed by one member of staff on shift. The options considered list contains only the option that was chosen, family views are summarised as 'family happy' with no name and no date, and the person's own past and present wishes appear nowhere. Nobody has checked whether a valid advance decision or a lasting power of attorney for health and welfare exists, so an attorney with lawful authority finds out about the decision after it has been made.

    A legal duty. This comes from legislation that applies to your service, so meeting it is not optional. The exact provision is cited beneath the badge.

    Mental Capacity Act 2005 s.4(6)-(7) and s.1(5)-(6); s.26(1) (advance decisions) and s.6(6) (acts inconsistent with a donee's decision); recording under Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, reg 17(2)(c)

  4. An Independent Mental Capacity Advocate (IMCA) is considered where the person has no one appropriate to consult, and the reasoning either way is written down so the next colleague can see it. What goes wrong is a person with no one in their life facing a serious decision with no IMCA referral and no recorded reason.

    Strong evidence: The IMCA referral pathway recording whether the person has family, friends, an attorney or deputy to consult, whether the decision type triggers IMCA consideration, and the reason for referral or the reason referral is not required (Section 9).

    Weak evidence: An Independent Mental Capacity Advocate (IMCA) column left blank on a spreadsheet, or marked 'not applicable' with no reason written beside it. 'Family involved' recorded where the only relative is a nephew who has not visited in years and was never actually contacted. A long-term move or a serious treatment decision going ahead for someone who has no one in their life, with nothing on file showing the service raised advocacy with the local authority or NHS body arranging it, and nothing written down about why it was not needed.

    Our recommended baseline. Not a legal or regulatory requirement, but a sensible standard we suggest where the rules leave the detail to you. Adapt it to your service.

  5. A possible deprivation of liberty is assessed on the current multifactorial basis (following the 2026 Supreme Court judgment, so no single acid test), and rests on a live authorisation: the Deprivation of Liberty Safeguards in a care home, or the Court of Protection where the Safeguards cannot authorise the arrangement, such as supported living or a person's own home. Where this slips, a restrictive arrangement is judged by rote against one fixed test with no valid authorisation behind it.

    Strong evidence: The policy note that a recent judgment has put the former 'acid test' in doubt, that whether an arrangement amounts to a deprivation of liberty should be approached through a multifactorial assessment rather than the former test applied mechanically, and that legal advice should be sought on individual cases while official guidance is awaited (Section 10 and the Sources note on the AGNI judgment).

    Weak evidence: Training slides, a policy or an assessment form still built around the former 'acid test' as though it settled the question, so staff tick continuous supervision and control and not free to leave and stop thinking there. Or the reverse: the judgment noted somewhere in the policy but nothing changed in how any individual arrangement is actually reasoned, with restrictive care plans carrying no record of what was weighed, what less restrictive option was tried first, or when senior or legal advice was sought on the genuinely difficult cases. Thin too: a standing list of people under authorisation that nobody has revisited since the judgment, so no one has asked whether each arrangement still amounts to a deprivation of liberty or whether the person is able to consent to it.

    Our recommended baseline. Not a legal or regulatory requirement, but a sensible standard we suggest where the rules leave the detail to you. Adapt it to your service.

Related

Last verified 20 July 2026

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Last reviewed 21 July 2026