Sample policy · MCA 2005

Mental Capacity Act policy template

Statutory anchor: Mental Capacity Act 2005, sections 1 to 5, engaged through Regulation 11 (need for consent), Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (SI 2014/2936). · primary source

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Verivius pack version v1, 2026-06-10

1. What the regulation says

This policy is engaged through Regulation 11 (need for consent) of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. Its primary law is the Mental Capacity Act 2005, sections 1 to 5, which set the decision-making framework for people who may lack capacity:

A person must be assumed to have capacity unless it is established that he lacks capacity.

A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.

For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

A lack of capacity cannot be established merely by reference to (a) a person's age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.

For the purposes of section 2, a person is unable to make a decision for himself if he is unable (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means).

He must consider, so far as is reasonably ascertainable, (a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so.

He must take into account, if it is practicable and appropriate to consult them, the views of (a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind, (b) anyone engaged in caring for the person or interested in his welfare, (c) any donee of a lasting power of attorney granted by the person, and (d) any deputy appointed for the person by the court, as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).

If a person ("D") does an act in connection with the care or treatment of another person ("P"), the act is one to which this section applies if (a) before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and (b) when doing the act, D reasonably believes (i) that P lacks capacity in relation to the matter, and (ii) that it will be in P's best interests for the act to be done.

D does not incur any liability in relation to the act that he would not have incurred if P (a) had had capacity to consent in relation to the matter, and (b) had consented to D's doing the act.

Nothing in this section excludes a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing the act.

The full text of the Act is at https://www.legislation.gov.uk/ukpga/2005/9/contents and the engaged regulation is at https://www.legislation.gov.uk/uksi/2014/2936/regulation/11. Where this policy and the Act or the regulation 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.

The Mental Capacity Act 2005 sets the law on decision-making for people aged 16 and over in England and Wales who may lack the capacity to make a specific decision at a specific time. The Act starts from five statutory principles: a 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; and the least restrictive option must be considered. Capacity is decision-specific and time-specific. When a person lacks capacity to consent to care or treatment, the responsible person follows the best interests determination in Section 4. Routine care and treatment is protected from liability under Section 5 if the person reasonably believes the person lacks capacity and that the act is in their best interests. Deprivation of Liberty Safeguards (DoLS, MCA Schedule A1) provide the legal mechanism for authorising any arrangement that deprives a person of their liberty in a care home or hospital setting. DoLS is being replaced by Liberty Protection Safeguards (LPS); LPS implementation is deferred and DoLS remains in force as of the page review date.

3. Scope

This policy applies to all clinical and direct-care staff at , every regulated activity that involves a decision about care or treatment for a service user aged 16 or over, every encounter where capacity may be in question (especially neurology, dementia, intensive care, end-of-life, mental health, learning disability, intoxication, post-anaesthesia). It covers capacity assessment, best-interests decision-making, Lasting Power of Attorney recognition, Court of Protection-deputy recognition, advance decisions to refuse treatment, IMCA referrals where required, and Deprivation of Liberty Safeguards applications where the service shape attracts them.

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4. Roles and responsibilities

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5. Procedure

The MCA procedure operationalises Sections 1 to 5 across every decision where capacity may be in question.

  1. Trigger. A specific decision arises (consent to a procedure, refusal of food or fluids, refusal of safeguarding, change of accommodation, change of treatment plan). The treating clinician identifies that capacity may be in question.
  2. Presume capacity. The MCA s1(2) presumption applies. The clinician supports the service user to make the decision with reasonable adjustments (timing, environment, communication aids, presence of supporter, plain-language explanation).
  3. Capacity assessment if needed. Where doubt remains, the two-stage MCA test is applied. Stage 1: is there an impairment of mind or brain. Stage 2: does that impairment cause the person to be unable to (a) understand the relevant information, (b) retain it, (c) use or weigh it as part of the decision, (d) communicate the decision. The assessment is decision-specific and time-specific.
  4. Record the assessment. The assessment is recorded in the clinical record with the assessor name, date, the specific decision in question, the support given to enable the person, the two-stage test result with reasoning, and the conclusion.
  5. Where the person has capacity: the clinician records the person's decision and respects it, including the right to make an unwise decision per s1(4).
  6. Where the person lacks capacity: the best-interests determination under s4 begins. The decision-maker (typically the treating clinician) considers all relevant circumstances per s4(2), considers the person's past and present wishes and feelings per s4(6), consults with anyone named by the person to be consulted, anyone caring for the person or interested in their welfare, any LPA donee, and any court-appointed deputy per s4(7), considers the least-restrictive option per s1(6), and records the decision with reasoning.
  7. Independent Mental Capacity Advocate (IMCA). Where the decision involves serious medical treatment, accommodation change of more than 28 days in a hospital, or accommodation change of more than 8 weeks in a care home, and the person has no appropriate other person to consult, an IMCA is instructed.
  8. Lasting Power of Attorney check. Before making a best-interests decision, the clinician checks the Office of the Public Guardian register for any registered LPA for health and welfare. Where one is in force and the decision is within its scope, the attorney's decision applies.
  9. Advance decision to refuse treatment. Where a valid and applicable advance decision exists per ss24 to 26, the advance decision takes priority over best-interests decision-making for the treatment refused.
  10. DoLS authorisation where required. Where the care plan may amount to a deprivation of liberty, the MCA / DoLS Lead assesses the arrangement in the round. Relevant factors may include the nature, duration, intensity, purpose and effect of restrictions; the person's wishes, objection or compliance; supervision arrangements; freedom to leave; and the legal context. Staff must not rely on the former Cheshire West "acid test" as a complete or settled rule. Where the assessment indicates a deprivation of liberty, the DoLS Lead prepares and submits a standard authorisation request to the supervisory body. The urgent authorisation procedure applies where the deprivation needs to start before the standard authorisation is in place. The Reg 18 (Registration Regulations 2009) notification to CQC follows when the standard authorisation request is made.

6. Training requirement

Training records held in the tenant's training matrix register.

7. Audit

Compliance with this policy is monitored by the MCA Lead:

Audit findings recorded in the tenant's audit register; actions logged in the improvement-actions register.

8. Record-keeping

MCA records (capacity assessments, best-interests decision records, IMCA referrals, LPA register checks, advance decisions, DoLS authorisations) form part of the clinical record and are held for a minimum of 8 years from the date of the last entry per the NHS Code of Practice on Records Management. Where the decision relates to a person under 18, retention follows until the child reaches the age of 25. DoLS authorisation records are retained for the duration of the authorisation plus the same NHS Code period.

Verivius preserves the per-record audit trail indefinitely while the workspace is active.

9. Related policies in this pack

10. 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.

11. 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.

12. Document control

Version Date Author Changes
v1 2026-05-19 Verivius (sample) Initial sample template.
v1.1 2026-06-01 Verivius (sample) Filled out Sections 3 to 8 with concrete content. Section 4 names the MCA Lead and DoLS Lead roles. Section 5 expanded to a 10-step procedure covering the five statutory principles, the two-stage capacity test, the s4 best-interests determination, IMCA referrals, LPA register checks, advance decisions, and DoLS authorisation. Section 6 names training tiers. Section 7 names the audit cadence. Section 8 references the NHS Code of Practice on Records Management.
v1, 2026-06-10 2026-06-10 Verivius (sample) Re-conformed to the current Verivius policy standard, preserving the original content. Anchored consent to Regulation 11 (need for consent) verbatim alongside the Mental Capacity Act 2005 sections 1 to 5; added the current disclaimer, header block, policy owner line, plain-English summary, sources and further reading, and when-to-seek-further-advice block.

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.

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.

The people this policy protects are often those least able to challenge a decision made about them: someone with advancing dementia, a person with a learning disability, an adult confused after surgery, a young person of sixteen or seventeen who has just come within the Act. The particular danger here is a label that sticks. Capacity is decision-specific and time-specific and it can return, so a 'lacks capacity' entry written once and then carried into every later decision quietly removes the person from choices they could still make for themselves. The best-interests record is the only place their past and present wishes, and the least restrictive option, are visibly weighed rather than assumed, which is why an entry giving only the outcome costs the person more than it appears to. Where an arrangement restricts someone's freedom with no lawful authority behind it, the loss of liberty is real and it is theirs, whatever good intention put it there.

  1. Each capacity assessment is decision-specific and time-specific, with the two-stage test reasoned in writing, not a blanket 'lacks capacity' label carried across every decision; the record shows why the person could not understand, retain, use or weigh, or communicate this specific decision, so anyone picking the care up later can see what was decided and on what basis.

    Strong evidence: The recorded capacity assessment (assessor name, date, the specific decision in question, the support given, the two-stage test result with reasoning, the conclusion) and the quarterly capacity-assessment sample reviewed for two-stage-test completeness and decision-specificity.

    Weak evidence: A tick-box form marked 'lacks capacity' with no named decision on it, or one assessment dated once and then reused for every later decision. The two-stage test reduced to two ticked boxes, with no reasoning showing which limb the person could not meet, understand, retain, use or weigh, or communicate, and nothing showing that the impairment is what causes the inability.

    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 ss.2(1) and 3(1), applied to registered providers by Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 reg 11(3); recording duty under reg 17(2)(c)

  2. Best-interests records show the Section 4 reasoning (the options weighed, the person's past and present wishes and feelings, who was consulted, the least-restrictive option), not just the outcome that was reached.

    Strong evidence: The best-interests decision record and the quarterly best-interests-decision sample reviewed for Section 4 process compliance (relevant circumstances considered, person's wishes recorded, appropriate consultations completed, least-restrictive option considered).

    Weak evidence: A best-interests record that states only the outcome reached, for example 'agreed it is in his best interests to move', with no options listed, no note of the person's past and present wishes and feelings, no record of who was consulted, and nothing showing the least restrictive option was weighed.

    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 (in particular s.4(2), (4), (6) and (7)) together with s.1(6)

  3. The person is actively supported to make the decision before being treated as unable, rather than moved straight to an assessment; the failure is a capacity assessment with no record of the reasonable adjustments (timing, environment, communication aids, supporter, plain-language explanation) tried first.

    Strong evidence: The 'support given to enable the person' entry within the recorded capacity assessment, evidencing the section 1(2) presumption and the practicable-steps duty.

    Weak evidence: A capacity assessment that goes straight to the two-stage test with the 'support given' field blank or filled with a generic 'explained clearly'. No record of adjustments actually tried first: a better time of day, a quieter room, communication aids, an interpreter, a trusted supporter, or a plain-language re-explanation.

    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.1(3), with s.1(2) and s.3(2)

  4. A registered Lasting Power of Attorney (LPA), court-appointed deputy or valid advance decision is checked before any best-interests decision, so the service does not run a best-interests process over the top of someone who already holds legal authority to decide.

    Strong evidence: The Office of the Public Guardian register check for a health-and-welfare LPA, the advance-decision check under sections 24 to 26, and these records held within the clinical record as part of the Mental Capacity Act (MCA) record set.

    Weak evidence: A best-interests decision made over the top of someone who already holds legal authority: a relative's word taken as proof of a registered health and welfare Lasting Power of Attorney with no sight of the registered instrument, no search of the Office of the Public Guardian register recorded, and nothing on file showing whether a court-appointed deputy or a valid and applicable advance decision to refuse treatment exists.

    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.6(6) and s.26(1), with s.4(7)(c) and (d)

  5. An unwise decision by a person who has capacity is respected and recorded as their choice, not read as evidence they lack capacity.

    Strong evidence: The record of the person's decision where they have capacity, including the section 1(4) right to make an unwise decision, sampled through the quarterly capacity-assessment review.

    Weak evidence: A capacity assessment triggered only because the person declined the recommended care, with the refusal itself treated as the impairment. No line affirming that the person has capacity and that the choice is theirs to make, and the refusal written up only as a risk or a safeguarding concern with no record that it is a decision the service accepts.

    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.1(4), with Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 reg 17(2)(c) for the record

  6. An arrangement that may deprive a person of their liberty is recognised and assessed in the round, so nobody lives under restrictions that no one has authorised. In a care home or hospital, a standard authorisation is requested from the supervisory body; in any other setting, the Court of Protection is the authorisation route. The statutory notification to CQC under the Care Quality Commission (Registration) Regulations 2009 is a separate duty, made once the outcome is known, and obtaining the DoLS authorisation does not discharge it. The failure is a restrictive arrangement running with no authorisation, or a single fixed test treated as the whole rule rather than assessing the arrangement on the current multifactorial basis.

    Strong evidence: The Deprivation of Liberty Safeguards (DoLS) assessment of the arrangement (nature, duration, intensity, purpose, effect, the person's wishes or objection, supervision, freedom to leave), the standard authorisation request to the supervisory body, and the annual DoLS authorisation review against the supervisory-body conditions and expiry date; the statutory notification to CQC under the Care Quality Commission (Registration) Regulations 2009 is a separate duty and a separate record, not the authorisation itself.

    Weak evidence: Restrictions running in practice, locked doors, constant supervision, restricted contact or a person stopped from leaving, with nothing on file assessing whether they add up to a deprivation of liberty. A tick reading 'acid test met' or 'acid test not met', applying one fixed test rather than weighing the nature, duration, intensity, purpose and effect of the arrangement together with the person's own wishes, objection or compliance. In a care home or hospital, no standard authorisation request to the supervisory body; in any other setting, no Court of Protection route considered. An authorisation granted, refused or withdrawn with no separate CQC notification of that outcome, or the authorisation and the notification treated as one step.

    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.

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Last verified 20 July 2026

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Last reviewed 10 June 2026