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.
It is recognised that much has already been achieved but that more needs to be done across the system to fully implement this important piece of legislation. 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 Deprivation of Liberty Safeguards (DoLS).
Developed by the sector with funding from the DH, this resource aims to be a self-assessment tool that 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 reducing restrictions 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 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.
Led by ADASS, each region has an MCA including DoLS lead attending a national network. This enables each region to share best practice, to support improvement locally and regionally and to have a source of information and expertise.
|Regional MCA-DoLS Leads||Name of Lead|
|East of England||Joseph Yowfirstname.lastname@example.org|
|East Midlands||Heather Blow||Heather.email@example.com|
|North East||Melony Bramwell||Melonybramwell@gateshead.gov.uk|
|North West||Penny Davidsonfirstname.lastname@example.org|
|South East||Sarah Padyemail@example.com|
|South West||Chris Hamilton||CAHamilton@somerset.gov.uk|
|West Midlands||Lorraine Currie||Lorraine.firstname.lastname@example.org|
|Yorkshire and the Humber||Amanda Coyne||Amanda.Coyne@rotherham.gov.uk|
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:
- key government documents
- an explanation of the MCA principles for people who may lack capacity and their carers
- advance planning and decision-making
- assessing capacity
- MCA e-learning course
MCA guidance for community based services and members of care providers' boards
The Transforming Care programme, in partnership with the Care Providers Alliance, commissioned some guidance for providers of community services and a briefing paper 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.
- Care providers and the Mental Capacity Act 2005
- Mental Capacity Act 2005: a brief guide for providers of Shared Lives and other community services
- Mental Capacity Act 2005: an easy read guide
The Care Act reflects the shift in adult safeguarding policy and practice towards ensuring local partners work together to promote dignity, empowerment and choice.
39 Essex Chambers have provided a guide to carrying out capacity assessments, with a focus is on how to apply the MCA 2005 principles when assessing capacity and how to record assessments in the context of health and welfare decisions.
- 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 and an update in October 2015.
for local authorities leads on the current position on DoLS and the MCA.
- The Care Quality Commission (CQQ) State of Health Care and Social Care in England 2015/16 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 a guide for professionals assessing mental capacity and on best interests decision-making
- More bespoke support can be discussed with LGA regional representatives.
Deprivation of Liberty safeguards (DoLs)
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 and seeks to signpost people to their rights. 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. Developed in Spring 2016 by a small project group representing the Association of Directors of Adult Social Services (ADASS), NHS England, representatives of care providers, the LGA, and the Ministry of Justice, it will assist care and health partners to ensure they are compliant with statutory responsibilities. It focuses on the right to request a review of the authorisation or any aspect of it. It also highlights the right to appeal against the authorisation to the Court of Protection, which attracts free legal aid and is a key safeguard and protection within the DoLS process. It can be used by supervisory bodies to accompany Form 5 and can also be sent to Relevant Persons Representatives (RPRs) so that they too are aware of the person's rights and can support them.
List of Independent Best Interests Assessors
This list has been compiled for the benefit of any supervisory body who wishes to commission an Independent BIA. It is broken down by region. It does not include any agencies who may supply BIAs. The names and details have been provide by the BIAs themselves. Inclusion on the list does not indicate any recommendation of the BIA or any quality assurance of their work. The details provided are all correct when provided. It will be updated periodically. If you wish to amend or be added to the list, please email email@example.com
The Law Society has produced a practical guide to identifying a deprivation of liberty.
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 the costs of any new burdens including DoLS be fully funded so that vulnerable people's rights can be maintained. Find out more about our joint work with ADASS on the pressures caused by the judgement.
- Work by the Law Commission on their review of DoLs, with a final report and draft Bill released in March 2017.
- LGA Briefing on the Policing and Crime Bill: the 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.
SCIE has also produced a range of resources looking at the impact of the March 2014 Supreme Court judgment on DoLS.