Explains what the Mental Capacity Act 2005 is and why it matters and is intended to help board members of care providers ensure vulnerable service users are not missing out on protections which are their legal right. The paper briefly discusses: capacity and consent; consent on someone else’s behalf; acting where people lack capacity to make their own decisions; best interests; restraint and restriction of liberty; deprivation of liberty; and ill-treatment and neglect. The paper includes a table setting out some questions board members of care providers might want to ask their officers and managers to get assurance that the MCA is being properly applied throughout their organisations.

This practice guide has been commissioned by the Department of Health to help frontline social and health professionals decide whether an individual they are concerned with may be deprived of their liberty due to the type of care or treatment that they are receiving or the level of restrictive practices that they are subject to. It focuses on the practical application of the legal principles. Part I provides details of the legal framework that governs deprivation of liberty and outlines the central principles of Article 5 European Court of Human Rights (ECHR). It then summarises the key elements of the Cheshire West decision. Part II details the most common settings in which a deprivation of liberty may occur: hospitals; psychiatric care; care homes; supported living services, such a shared lives schemes and extra care housing; Deprivation of liberty at home; and under 18s. For each setting the guidance identifies some of the factors that may point towards there being a deprivation of liberty; suggests scenarios which are very likely to/may/or not amount to a deprivation; and poses a number of questions that professionals can ask themselves when making decisions. The document includes links case law throughout. Part III provides summaries of key legal cases and further information and resources. The guidance is primarily relevant to the position in England and Wales. Quick reference guides covering each individual setting are also available.

Emergency guidance for health and social care staff in England and Wales who are caring for adults who lack the relevant mental capacity to consent to their care and treatment during the coronavirus (COVID-19) Pandemic. This document provides additional guidance to supplement ‘The Mental Capacity Act (2005) (MCA) and deprivation of liberty safeguards (DoLS) during the coronavirus (COVID-19) pandemic’, which was published in April 2020. It includes guidance on: testing someone who lacks the relevant mental capacity; providing life-saving treatment to someone who lacks the capacity to consent; hospitals and care homes; and using emergency public health powers when someone who lacks relevant capacity needs to be isolated because they have symptoms and are not following public health advice. [First published 29 May 2020; last updated 12 January 2021]

Up to 75% of UK care home residents may lack the mental capacity to make certain decisions (Wade, Clinical Rehabilitation, 2019, 33, 1561-1570). Care home staff need evidence-based tools to help them assess residents’ mental capacity and provide decision-making support (NICE, Decision-making and mental capacity NICE guideline NG108, 2018). The Mental Capacity Assessment Support Toolkit (MCAST) was designed to support multidisciplinary healthcare staff to prepare, complete and document legally compliant mental capacity assessments. MCAST has not yet been trialled in care homes. This study used a descriptive qualitative design to: (a) understand the current challenges faced by care home staff when supporting residents to make decisions and participate in mental capacity assessments; (b) explore staff members’ support needs in this context and (c) to identify if and how the toolkit could be adapted for use in care homes. A purposive sample of 29 staff working as managers (n = 18), nurses (n = 7) and care assistants (n = 4) across five care homes in North West England participated in five semi-structured focus groups between May and July 2019. Data from the focus group transcripts were analysed thematically (Braun & Clarke, Qualitative Research in Psychology, 2006, 3, 77-101). Five main themes were identified: (a) involvement of residents in decision-making; (b) approaches to mental capacity assessment; (c) working with residents with communication difficulties; (d) feelings about practice and (e) responses to MCAST. Participants appeared competent and confident about supporting decision-making and assessing capacity, but recognised the complexity of this area of practice, and identified a need for further support. They reported a range of challenges, including accessing support from speech and language therapists for residents with communication needs. They responded positively to the toolkit and were keen to use it in practice. This study suggests that care home staff would benefit from, and welcome, support to develop their practice. Furthermore, MCAST appears usable in this context and formal feasibility testing is justified.

This study explores the experiences of professionals who worked with care home residents with impaired mental capacity in England and Wales during the COVID-19 pandemic. It explores (i) how competing risks were balanced and (ii) how the Mental Capacity Act (MCA) functioned in care homes under pandemic conditions, with particular focus on its associated Deprivations of Liberty Safeguards (DoLS) and Independent Mental Capacity Advocacy (IMCA) systems. Between March and May 2021, an online survey and five focus groups aimed at professionals who worked in or with care homes during the pandemic, were held. The study explored issues pertaining to residents with impaired mental capacity, alongside several other topics on which the authors report elsewhere. For this paper, the researchers filtered data to only include responses from ‘capacity professionals’. The resulting sample comprised 120 (out of 266) survey participants and 18 (out of 22) focus group participants. The researchers performed manifest content analysis on the filtered data and found that (1) participants reported a ‘massive discrepancy’ between the ways different care homes balanced the risk of COVID-19 infection with the risks associated with severe restrictions. (2) Some suggested this was due to vague guidance, as well as care home type and size. Participants told us the pandemic (3) obstructed smooth operation of statutory safeguards designed to protect residents’ human rights and (4) resulted in confusion about the remit of the MCA during a public health crisis. The findings raise concerns about the impact of pandemic-related measures upon care home residents with impaired mental capacity. The researchers urge further exploration and analysis of (a) the variability and inconsistency of restrictions applied at care homes, (b) the strain placed on key safeguards associated with the MCA, (c) uncertainty about the remit of the MCA during a public health crisis and (d) the human rights implications hereof.

Information about the Deprivation of Liberty Safeguards (DOLS) –
an amendment to the Mental Capacity Act 2005 (MCA).

This resource describes good practice in the management and implementation of the Deprivation of Liberty Safeguards (DoLS; the Safeguards).

This is a summary of the rights people are entitled to when the council has decided they need to stay in a care home or hospital which they have named.

A case study focusing on a care home resident needing improvements to their accommodation, explaining how after intervention by an IMCA the decision was made to go ahead with the repair work. The case study has been drawn together by the Department of Health, the Care Quality Commission, and POhWER, a major provider of advocacy services, and shows how IMCAs can act as a powerful support to people who may lack capacity.

A case study focusing on a patient not being consulted in the decision about being discharged from hospital into a care home. However, after meeting with an IMCA it was decided that he did in fact have the capacity to decide where he wanted to live and was returned home with an appropriate care package. The case study has been drawn together by the Department of Health, the Care Quality Commission, and POhWER, a major provider of advocacy services, and shows how IMCAs can act as a powerful support to people who may lack capacity.

This leaflet sets out the actions a managing authority should put in place on receipt of a Deprivation of Liberty Safeguards authorisation.

Guidance on how to complete the DoLS form 10.