Mental Capacity and Deprivation of Liberty Safeguards (DoLS) England and Wales

What is Mental Capacity?

Mental capacity is the ability to make a decision it’s a simple as that.  The ability to make a decision is decision specific and time specific. This means that someone may have the capacity to make a decision about what to wear when they get dressed but may not be able to make a decision about medical treatment.

When you have to make a decision about something you have to weigh up various issues that impact on whether you make that decision or not. i.e., costs, safety, consequences etc.

You may not realise that you are consciously weighing up the issues as this process happens organically and naturally for most people that have capacity.  Those individuals that lack capacity may be compromised in their understanding of the consequences or risks of making or not making a decision for various reasons and situations.

In 2005 the Mental Capacity Act (MCA) was introduced and it applies to everyone involved in the care, treatment and support of people aged 16 and over living in England and Wales who are unable to make all or some decisions for themselves.

The Mental Capacity Act Code of Practice contains a statutory framework for people who lack capacity to make decisions for themselves, or who have capacity and want to make preparations for a time when they may lack capacity in the future. It sets out who can take decisions, in which situations, and how they should go about this.

What affects Capacity?

The first thing to acknowledge is that capacity can fluctuate and a lack of capacity can be temporary or permanent depending on the severity of the condition, illness or situation.

Some of the factors that can affect capacity are

• Illness i.e., brain injury, dementia, depression
• Severe learning disabilities
• Duress or undue pressure i.e., can affect making a genuine decision
• Substance / alcohol intoxication
• Effect of Prescribed Medicines
• Shock or panic
• Extreme tiredness

How do you support someone to make a decision?

When someone lacks capacity to make a decision it is reasonable to assume that they would want people close to them or directly involved in their care to be given appropriate information about their situation unless there is evidence to the contrary.

Those who lack capacity should be able to participate as far as possible in decision-making and express their views and the emphasis should shift to ensuring that decisions made on the adult’s behalf promote their overall best interests. i.e. provide them with advice and support

However, adults who lack the capacity to make decisions that would keep them safe from harm and protect them i.e., paying for services or goods that are not needed (financial abuse) refusing to take essential medication (self-neglect) are extremely vulnerable.

In these cases, the MCA Code of Practice provides guidance on how to make decisions for others in their ‘Best Interests’ to keep them safe from harm.

What is the Best Interest Principle?

The Best Interest Principles check list must be consulted when making decision for others. This legal framework will help guide your decision making and provide legal protection for decision makers. These Principles protect people who lack capacity and help them take part, as much as possible, in decisions that affect them.

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 him to do so have been taken without success.
3. A person is not to be treated as unable to make a decision merely because he makes 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 his 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.

How do you check someone’s mental capacity?

Checking or assessing someone’s capacity to make a decision for themselves should use the two-stage test of capacity found in the Code of Practice.

 The first Stage is to Assess Capacity (functional test) and you need to ask yourself the following questions.

• Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works? (It doesn’t matter whether the impairment or disturbance is temporary or permanent.) i.e., dementia, brain injury, temporary intoxication
• If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made? If the person is experiencing temporary incapacity you need to ask yourself if the person will regain capacity to make the decision themselves and is it safe to wait.

If the answer to the two questions above is YES, then move onto Stage 2 below

The Second Stage is to Assess the ability to make a decision, and you need to ask specific questions about the decision that needs to be made.

1. Does the person have a general understanding of what decision they need to make and why they need to make it? You should ask them to explain what impact the decision will have on them and why a decision is necessary to alter the status quo
2. Does the person have a general understanding of the likely consequences of making, or not making, this decision? You should ask then to tell you what they understand what will happen if the make the decision and what will happen if they do not make the decision.
3. Is the person able to understand, retain, use and weigh up the information relevant to this decision? You need to consider if your advice and explanations about the decision are being retained or if you have to continually repeat the information – can they remember what you have said?
4. Can the person communicate their decision (by talking, using sign language or any other means)? Would the services of a professional (such as a speech and language therapist) be helpful?

If the answer to either of the questions 1-3 above is NO, then the person lacks capacity.

If the person is not able to communication, then further specialist support is needed and the services of an IMCA would be best practice.

Recording Capacity Assessment and decision making

For professional healthcare staff who are subject to higher standard in terms of record keeping and formal records recording capacity assessments and decision making is essential.

To have protection from liability when providing care or treatment, you must have a reasonable belief that the person you care for lacks capacity to make relevant decisions about their care or treatment.

Your written record should describe the steps taken to assess capacity and reach a decision.  E.g., in the person’s care plan, or patient’s clinical notes.

DoLS – What is a Deprivation of Liberty?

In some cases, people lack the capacity to consent to particular treatment or care that is recognised by others as being in their best interests, or which will protect them from harm. Where this care might involve depriving vulnerable people of their liberty in either a hospital or a care home, extra safeguards have been introduced, in law, to protect their rights and ensure that the care or treatment they receive is in their best interests.

What constitutes a Deprivation of Liberty?

Simply put it is a restriction or restraint on an individual.

If a person is deprived of their liberty, they are not free to leave the premises on a permanent basis, for example to live where and with whom they choose to, and they are subject to continuous supervision and control. This means they are monitored or supervised for significant periods of the day and they are not allowed to make important decisions about their own life. The safeguards are vital in ensuring that such deprivation of liberty only happens when it is necessary, proportionate and in the person’s best interests.

(Cheshire West case)

A simplified interpretation is

• The person is unable to make a decision about the care they receive or where they live and is unable to consent to the arrangements in place for their care, because of a ‘Mental Disorder’.
• The person is under ‘continuous supervision and control’.
• The person is ‘not free to leave’ (permanently).

Where does the DoLS requirement originate?

DoLS requirements originate from need to uphold Article 5 of the European Convention on Human Rights (ECHR), which protects the right to personal liberty. The ECHR was incorporated into UK law by the Human Rights Act 1998.

The Deprivation  of Liberty Safeguards (DoLS) Code of Practice was introduced in 2009 as a supplement to the MCA and it provides legal authority to apply restrictions,  controls or restraints  on adults ( 18 years and over) residing  in care homes and hospitals who lack the mental capacity to make decisions or consent to their care arrangements.

Key definitions

The following list of key definitions will help you navigate the following information about DoLS

1. Supervisory Body

A primary care trust, local authority, Welsh Ministers or a local health board that is responsible for considering a deprivation of liberty request received from a managing authority, commissioning the statutory assessments and, where all the assessments agree, authorising deprivation of liberty.

2. Managing Authority

The person or body with management responsibility for the hospital or care home in which a person is, or may become, deprived of their liberty. i.e. Care Provider

3. Relevant Person

A person who is, or may become, deprived of their liberty in a hospital or care home.

4. Restriction of Liberty

An act imposed on a person that is not of such a degree or intensity as to amount to a deprivation of liberty.

5. Restraint

The use or threat of force to help carry out an act that the person resists. Restraint may only be used where it is necessary to protect the person from harm and is proportionate to the risk of harm.

6. Urgent authorisation

An authorisation given by a managing authority for a maximum of seven days, which may subsequently be extended by a maximum of a further seven days by a supervisory body, that gives the managing authority lawful authority to deprive a person of their liberty in a hospital or care home while the standard deprivation of liberty authorisation process is undertaken.

7. Standard Authorisation

An authorisation given by a supervisory body, after completion of the statutory assessment process, giving lawful authority to deprive a relevant person of their liberty in the relevant hospital or care home.

8. Best Interest Assessment

An assessment, for the purpose of the deprivation of liberty safeguards, of whether deprivation of liberty is in a detained person’s best interests, is necessary to prevent harm to the person and is a proportionate response to the likelihood and seriousness of that harm.

9. Assessor

A person who carries out a deprivation of liberty safeguards assessment.

10. Independent Mental Capacity Advocate

Someone who provides support and representation for a person who lacks capacity to make specific decisions, where the person has no-one else to support them. The IMCA service was established by the Mental Capacity Act 2005 and is not the same as an ordinary advocacy service.

What are the Safeguards?

The deprivation of a person’s liberty is a very serious matter and should not happen unless it is absolutely necessary, and in the best interests of the person concerned. That is why the safeguards have been created: to ensure that any decision to deprive someone of their liberty is made following defined processes and in consultation with specific authorities.

The deprivation of liberty safeguards provide legal protection for those vulnerable people who are, or may become, deprived of their liberty within the meaning of Article 5 of the ECHR in a hospital or care home, whether placed under public or private arrangements. They do not apply to people detained under the Mental Health Act 1983. The safeguards exist to provide a proper legal process and suitable protection in those circumstances where deprivation of liberty appears to be unavoidable, in a person’s own best interests.

Why are DoLS important in healthcare settings?

These safeguards only apply in care homes and hospitals, and the Code of Practice places a legal duty on care providers to identify when a Deprivation of liberty is occurring on a patients or residents and to take practical steps to prevent it occurring in the first place.  i.e., consider whether the person’s needs could be met in a less restrictive way.

Once a deprivation has been identified the Care Provider is required to apply for the restriction or restraint to be authorised either as an emergency authorisation (within 24 hours) or a more widely used Standard Authorisation.

The Care Quality Commission (C.Q.C.) are the inspection body that monitors DoLS applications and authorisations.  Continuing a deprivation of liberty or restraint without authorisation is a serious matter and is unlawful. unlawful. This constitutes a serious breach of the person’s fundamental human rights, specifically their right to liberty and security as protected under Article 5 of the European Convention on Human Rights.

Who can authorise DoLS?

Local Authorities can authorise a Deprivation of liberty (Standard Authorisation) for the area in which the relevant person is ordinarily resident in a care home, whether situated in England or Wales.

If a Managing authority believes it is necessary to deprive someone of their liberty in their best interests before the standard authorisation process can be completed, the managing authority must itself give an urgent authorisation and then obtain a standard authorisation within seven calendar days.

Why is Dols Changing?

Following a consultation The Law Commission reported that DoLS were complicated and bureaucratic and no longer fit for purpose.

In 2019 Government introduced the Mental Capacity (Amendment) Act 2019 designed to replace Deprivation of Liberty Safeguards (DoLS with Liberty Protection Safeguards (LPS)). However, this change has still not been implemented.

What is replacing DoLS?

In 2025 the Government announced a Consultation will take place on LPS in 2026

Key Messages for LPS

• LPS (formerly DoLS) is rooted firmly within the Mental Capacity Act 2005 (MCA) and all the key principles of the MCA fully apply.
• LPS will be about safeguarding the rights of people who are under high levels of care and supervision but lack the mental capacity to consent to those arrangements for their care.
• LPS will apply to people in care homes, hospitals, supported accommodation, Shared Lives accommodation and their own homes.
• LPS will apply to everyone from the age of 16 years.
• LPS will need to be authorised in advance where possible by what will be termed ‘the Responsible Body’ which now includes health authorities