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).
Liberty Protection Safeguards implementation
The Deprivation of Liberty Safeguards (DoLs) form part of the Mental Capacity Act and were to be replaced by the Liberty Protection Safeguards (LPS) in April 2022. The Department of Health and Social Care has confirmed that their introduction will be postponed and a new date will be set once they’ve considered the responses to the consultation, and the outstanding work required.
Government has pulled together current legislation and guidance on the Liberty Protection Safeguards (LPS) and the latest information on progress towards their implementation. The public consultation was launched on 17 March 2022 and it ran until 11.45pm on Thursday 14 July 2022. The LGA has welcomed reform of the current complex system and is working with Government and other partners to support councils to prepare, including a programme of regional support. Further resources on DoLs are below.
The introduction of the LPS implementation forms part of mental health reform.
LGA resources on the Mental Capacity Act
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 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.
Promoting less restrictive practice
This 2016 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.
Improvement tool
Developed by the sector, this self-assessment resource tool, developed in 2015, 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.
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 then 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 in 2015.
Other resources
- 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
- SCIE has a short video to encourage the sector to consider how LPS can promote practice which aligns with human rights and the core principles and duties of the Care Act 2014.
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The Government's Code of Practice gives guidance for decisions made under the Mental Capacity Act.
Regional DoLS Leads
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
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Carolyn McIntosh
carolyn.mcintosh@hertfordshire.gov.ukDaniel Baker
daniel.baker@centralbedfordshire.gov.uk - East Midlands
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Chair: Heather Blow
Heather.blow@lincolnshire.gov.uk - London
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Chair: Diane Fossey
diane.fossey@richmondandwandsworth.gov.ukDeputy: Henry Gilfillan
henry.gilfillan@bexley.gov.uk - North East
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Chair: Melony Bramwell
Melonybramwell@gateshead.gov.uk - North West
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Chair: Penny Davidson
pdavidson@warrington.gov.ukCo-chair: Martin Sexton
martin.sexton@salford.gov.uk - South East
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Chair: Rachael Roberts
rachael.roberts@portsmouthcc.gov.ukDeputy: Amy Allen
amy.allen@oxfordshire.gov.uk - South West
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Chair: Chris Hamilton
CAHamilton@somerset.gov.uk - West Midlands
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Chair: Liz Hill
lizhill@warwickshire.gov.uk - Yorkshire and the Humber
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Chair: Derek Boothby
dboothby@wakefield.gov.ukDeputy: Amanda Coyne
Amanda.Coyne@rotherham.gov.uk
ADASS Deprivation of Liberty Safeguards resources
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'
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?
Other resources
- NHS Digital supplies annual data on DoLS and the Care Quality Commission (CQQ)’s State of Care reports includes findings on the implementation of the Mental Capacity Act including DoLS in hospitals and care homes.