The Mental Capacity Act (MCA) 2005 promotes a person centred approach which promotes autonomy and for those who may lack mental capacity ensures that decisions made on their behalf are made in their best interests and with the least possible restriction of freedoms.
Building on the work carried out in individual authorities, the Local Government Association (LGA) and the Association of Directors of Social Services (ADASS) have produced a range of resources that can assist local areas in their implementation of the Act, including the new Liberty Protection Safeguards (LPS) which will be replacing Deprivation of Liberty Safeguards (DoLS).
MCA, DoLs and COVID-19
The Department of Health and Social Care issued guidance on Coronavirus (COVID-19): looking after people who lack mental capacity which outlines councils’ ongoing responsibilities, including around face-to-face visits that may be need as part of the DoLs process. The Government has also updated its visiting policy for family and friends of care home residents, which professionals are asked to also read. Any questions can be sent to firstname.lastname@example.org.
The Government has also updated emergency guidance on mental capacity and the pandemic, with a section on the COVID-19 vaccination added to The Mental Capacity Act (2005) (MCA) and deprivation of liberty safeguards (DoLS) during the coronavirus (COVID-19) pandemic: additional guidance. The high level legal principles set out in this document are based on more detailed guidance already published by the NHS in the Standard Operating Procedure for administering the first COVID-19 vaccination in community settings. Outputs from the National Mental Capacity Forum webinar, MCA and COVID vaccinations in care homes provide further advice from mental capacity experts, with information also available from regional DoLs leads.
Visit adult social care and support and COVID-19 for more general information.
Liberty Protection Safeguards implementation
Government introduced the Mental Capacity (Amendment) Bill 2017-19 on 3 July 2018 and has launched an LPS document collection page which brings together key documents on LPS implementation. This includes information on the Government’s plans for draft regulations, which will form part of the public consultation, planned for 2021.
The LGA has welcomed reform of the current complex system and is working with Government and other partners, including via a national steering group on implementation and transition.
Reporting to ADASS, each region can share best practice, support improvement and to have a source of information and expertise via the regional leads below.
East of England
Yorkshire and the Humber
Mental Capacity Act
Developed by the sector, this self-assessment resource tool can be used across a range of organisations to assess a service, to identify and promote good practice and to highlight areas for further development.
Promoting less restrictive practice
This toolkit aims to aims to help practitioners identify restrictions in a person's care, in order to examine whether the care is the ‘least restrictive' possible, as required by the Mental Capacity Act. Developed by ADASS, the Care Provider Alliance and the LGA, it can also be used as part of care planning to ‘promote liberty and autonomy' in care plans.
Putting the MCA principles at the heart of adult social care commissioning
Commissioners will want to ensure that the services are being delivered in a way that both respects and promotes the rights of vulnerable individuals. This ADASS and LGA guide seeks to support local commissioners' understanding and application of the MCA. It provides a framework and a series of key questions for local commissioners to use at every stage of the commissioning process.
MCA guidance for community based services and members of care providers' boards
The Transforming Care programme, in partnership with the Care Providers Alliance, commissioned a guide for providers of community services and a briefing aimed at members of care provider's boards in order to support providers to apply the MCA in the right way, alongside an easy read guide to the MCA.
Applications to the Court of Protection: a guide for council staff
Any decision in relation to an application to Court of Protection must be informed by the MCA, the MCA Code of Practice and case law. This note produced in June 2017 for ADASS offers guidance to Councils about when the intervention of the Court of Protection may be needed in relation to welfare decisions where a person lacks mental capacity for the decision. This overview is not a replacement for legal advice which should always be sought in individual cases.
- The Social Care Institute for Excellence (SCIE) has also developed an MCA Directory to give those who work with people who lack mental capacity advice and support, including examples of good practice. The Directory includes advance planning and decision-making, assessing capacity and a MCA e-learning course
- The Government's Code of Practice gives guidance for decisions made under the Mental Capacity Act.
- DH has produced a card outlining MCA principals for use with people that use services and their family carers.
- The Care Quality Commission (CQQ) State of Care in England 2016/17 includes findings on the implementation of the Mental Capacity Act including DoLS in hospitals and care homes, which local commissioners may also find useful.
- 39 Essex St has produced guides for carrying out capacity assessments and carrying out best interests assessments.
Deprivation of Liberty safeguards (DoLs)
The Deprivation of Liberty Safeguards (DoLs) form part of the Mental Capacity Act. The Law Society has produced a practical guide to identifying a deprivation of liberty.
ADASS Deprivation of Liberty Safeguards guidance
ADASS has provided guidance to councils in their role as supervisory body for the Mental Capacity Act Deprivation of Liberty Safeguards and a revised full set of the DoLS forms. A toolkit seeks to assist those completing Form 3.
Your rights is a simple information sheet for those people who are being deprived of liberty in either hospitals or care homes to signpost people to their rights. Developed in spring 2016 by a small project group representing ADASS, NHS England, representatives of care providers, the LGA, and the Ministry of Justice. It can be used by care and health providers, local commissioners and people that use services and its aim is to ensure that the rights of people who lack capacity are effectively safeguarded.
Quick Guides to DoLS
ADASS produced two short guides in June 2017 on Deprivation of Liberty Safeguards (DoLS) and Deprivation of Liberty Orders (also known as Community DoLS or Judicial Appointments). They cover the following areas and include examples:
- What does deprivation of liberty mean?
- What does this mean in practice?
- How does it affect my family member or my friend?
Impact of Supreme Court decision
The Supreme Court judgment means that thousands more people will need to be assessed under the Deprivation of Liberty Safeguards (DoLS). We want to work with government so that DoLS is reformed and sustainably funded so that people's rights can be maintained. Find out more about our joint work with ADASS on the pressures caused by the judgement.
SCIE has also produced a range of resources looking at the impact of the March 2014 Supreme Court judgment on DoLS.
- MCA: Deprivation of Liberty (DoL) in light of the Supreme Court judgment: explaining the 2014 changes
- MCA: Deprivation of Liberty (DoL) in light of the Supreme Court judgment: messages for practice
- Updated At a glance: The Deprivation of Liberty Safeguards
Reform of DoLs
The Government responded to work by the Law Commission on their review of DoLs. Read the LGA response to the review. The House of Commons Library has released a Deprivation of Liberty Safeguards briefing document that summarises the Law Commission's recommendation that DoLS be replaced with a new scheme called the Liberty Protection Safeguards.
The Policing and Crime Act relieves coroners of the current duty to undertake an inquest into every death after 3 April 2017 where the deceased was subject to a DoLS authorisation.