Mental Capacity Act and Deprivation of Liberty Safeguards (DoLS)

The Mental Capacity Act (2005)

The Mental Capacity Act (MCA) is a law that protects the rights of people aged 16 and over. It enables them to make their own decisions wherever possible.

It also adds a safety net for those who are unable to make a specific decision due to a mental disorder.

This can be decisions about:

• minor things like what food to buy or what to wear
• more serious things like whether to move to a care home or have major surgery

Find out more about the MCA and making decisions on these websites:

• NHS
• Mind UK
• GOV.UK

The 5 key principles

The MCA has 5 key principles that everyone must follow. These are:

1. A person must be assumed to have capacity unless it is established that they lack capacity.
2.  A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.
3. A person is not to be treated as unable to make a decision merely because they make an unwise decision.
4. 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 their best interests.
5. 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.

Assessing capacity

Anyone can assess capacity. Some more complex decisions may need a trained professional to do this, such as a doctor or social worker.

For a person to make a decision, they need to be able to:

• understand the information relevant to the decision
• remember the information long enough to make a decision
• work out what they think about it. This includes weighing up the advantages, disadvantages and likely consequences
• communicate their decision to others

A person has a lack of capacity to make a particular decision if they are unable to do:

• one or more of the 4 steps above
• this due to a mental disorder such as (but not limited to) dementia, a brain injury or a learning disability

People who lack capacity - easy read

Best interest decisions

If someone is unable to make a specific decision, then the decision will need to be made in their best interests.

Sometimes, a person will have:

• made a Lasting Power of Attorney
• made an Advance Decision
• a Court Appointed Deputy who can make the decision on their behalf

Anyone who makes a best interest decision must abide by the law and follow the Code of Practice.

The person must still be involved in the decision, even if they lack capacity. Their wishes and feelings should be taken into account.

Others involved in the person's life should also be spoken with. They should be given the opportunity to share their views. That includes:

• family members
• friends
• carers
• other professionals
• their advocate (if relevant)

If a best interest decision cannot be reached, an application may be made to the Court of Protection. This means a judge will make the final decision.

No one can make decisions on another person's behalf about consent to sex or marriage.

Advocacy

Advocacy helps a person to speak up and get involved when decisions are being made about their life. It means having someone on your side.

If you're aged 16 to 17

Find information about how advocacy can help you on the Council for Disabled Children website

If you're a parent of a young person with special educational needs or a disability (SEND) 

Find information about how advocacy can help you as a parent of a young person with SEND on the Council for Disabled Children website

If you're aged 18 or over

Find out how Swan Advocacy may be able to help you

Deprivation of Liberty Safeguards (DoLS)

Some people are prevented from leaving care in hospitals and care homes for their own safety. This is called 'deprivation of liberty'.

A person may be 'deprived of their liberty' if they:

• lack capacity to consent to their care and treatment
• are under continuous supervision and control
• are not free to leave a care home or hospital

Deprivations of liberty are judged on a case by case basis.

If a person is deprived of their liberty, it is important that the person has legal protection to ensure:

• that their human rights are not breached
• there is a way for them to challenge this deprivation of liberty through court

This legal protection is called the Deprivation of Liberty Safeguards (known as DoLS).

If a care home or hospital is depriving a person of their liberty, then they must tell us. We will check to see whether they are acting lawfully.

We need to complete an assessment to authorise the deprivation. We do this once we are told that a person is being, or is likely to be, deprived of their liberty.

This assessment is carried out by 2 professionals:

• a specially trained doctor that will assess the person's mental disorder
• a second professional called the Best Interest Assessor (BIA)

The BIA is a specially trained:

• social worker
• nurse
• occupational therapist
• psychologist

They will spend time talking to the person and anyone involved in their life, such as:

• carers
• family members
• other professionals

A DoLS Standard Authorisation is only granted once the doctor and BIA are satisfied that the deprivation of liberty is lawful.

During the DoLS assessment, a representative for the person must be selected. They are known as the Relevant Person's Representative (RPR). The RPR keeps in touch with the person and supports them to challenge the DoLS Standard Authorisation if they object to:

• their care
• their accommodation
• restrictions in their life

If the person or their RPR disagrees with the standard authorisation, then they can challenge us in the Court of Protection. This is called a Section 21A challenge. There is non-means tested legal aid available along with full advocacy support for this process.

A judge will then decide:

• what care and treatment is in that person's best interests
• where they should stay

The DoLS process only applies to those in a hospital or care home. If a person is deprived of their liberty in their own home or a supported living environment, then we will apply to the Court of Protection for a judge to agree this. This is often known as a "Community Deprivation of Liberty" or referred to as the "Re. X procedure".

Changes to the law

Liberty Protections Safeguards - indefinitely postponed

The Liberty Protection Safeguards (LPS) was the legislative changes expected to replace the Deprivation of Liberty Safeguards, and this was anticipated as coming into statute in 2023. However, the government of the day in 2023 postponed LPS for the life of the last parliament and the current government have, to date,  made no public comment or plans for LPS. It is not known if LPS will ever come into force at this stage so for the foreseeable future the Deprivation of Liberty Safeguards remain the legislation that must be used to authorise the Deprivation of Liberty for those who lack capacity. 

As part of the LPS process there was also consultation on a new Mental Capacity Act Code of practice as the existing one is so out of date. This is also still outstanding and there is no current news about when this will be introduced. 

What we do

For our MCA Team, maximising a person’s human rights and autonomy is at the heart of everything we do. Our task is to ensure that every citizen of Dorset who receives care, gets this support following the principles of the Mental Capacity Act (2005).

To achieve our task, our MCA team has three functions:

1. To provide expert advice and guidance to professionals and care staff working in Dorset on MCA issues.
2. To provide bespoke training to Dorset Council and independent and voluntary sector staff, on MCA best practice.
3. To coordinate and oversee the provision of Deprivation of Liberty Safeguards (DoLS) authorisations for Dorset citizens.

Contact details