The Mental Capacity Act 2005, covering England and Wales, provides 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.
The Mental Capacity Act 2005 affects people who can’t make decisions for themselves, perhaps because of:

  • a learning disability;
  • dementia;
  • mental health problem;
  • a head injury or a stroke;
  • a drug, alcohol or substance addiction; or
  • An acute illness or the treatment for it.

At the heart of the Mental Capacity Act in terms of concepts and values are the five ‘statutory principles’. Consider the five principles as the benchmark. They should be used to underpin all acts done and decisions taken in relation to those who lack capacity. They 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 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.

Some people who live in hospitals and care homes can’t make their own decisions about their care or treatment because they lack the mental capacity to do so. They need more care and protection than others, to ensure they don’t suffer harm.

Sometimes, caring for and treating people who need extra protection may mean restricting their freedom. For instance, it might be necessary to stop a person from leaving the hospital or care home, or staff might have to make most of the choices for a person inside the care home. If there are a lot of restrictions like this, it may be that the person is being deprived of their liberty.

Hospitals and care homes should always try to avoid this, but sometimes there is no alternative to deprive a person of their liberty because it is in their best interests.


The Deprivation of Liberty Safeguards (DoLS) provide additional protection for the most vulnerable people living in residential homes, nursing homes, hospital environments and supported housing through the use of a rigorous, standardised assessment and authorisation process. They aim to protect those who lack capacity to consent to arrangements made in relation to their care and/or treatment, but who need to be deprived of their liberty in their own best interest to protect them from harm. They also offer the person concerned the rights:

  • To challenge the decision to deprive them of their liberty;
  • For a representative to act for them and protect their interests; and
  • The right to have their status reviewed and monitored on a regular basis.

Hospitals and Care Homes (these are called Managing Authorities) have a duty under the Safeguards to:

(a) Provide care and treatment in ways that do not deprive a person of their liberty, or if this is impossible
(b) Apply to the Supervisory Body for authorisation of the deprivation of liberty

The Council and the Primary Care Trust (these are called Supervisory Bodies) have a duty under the Safeguards to:

(a) Assess any person for whom the Managing Authorities request a deprivation
(b) Authorise a deprivation if it is necessary in the best interests of a person to whom the Safeguards apply
(c) Set any necessary conditions to ensure the person’s care/treatment regime meets their needs in their best interests
(d) Set a timescale for how long a deprivation can last
(e) Keep records of who is being deprived of their liberty


If you are a Managing Authority (Care Home or Hospital) and think you are already depriving someone of their Liberty you will need to complete Form 1 all pages and submit them to the relevant supervisory body. If you think that you will be depriving someone in the future, for example a new admission that has not yet arrived, complete and submit Form 1 excluding pages 6 and 7.


You can go to Warwickshire County Council’s website for further information and contact details for DoLS and Mental Capacity Act.

You can also read the full legislation of the Mental Capacity Act here.

Watch this informative video created by Social Care Institute for Excellence.

 

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