Mental Capacity Act and Deprivation of Liberty
In this section
Mental Capacity Act
The Mental Capacity is a human rights based piece of legislation. It is considered a ‘Bill of Principle’ or ‘Framework legislation.’ It applies across the broad spectrum of health and social care and within individual’s private lives and homes. This means that it can sometimes be difficult to determine your professional responsibilities in regard to it.
National guidance in regards to using the Mental Capacity Act is available here.
Please bear in mind that the guidance was published in 2007. Some aspects are now out of date and have been superseded by subsequent case law judgements. NHS Somerset has written a local MCA guidance. This offers a guide to using the MCA linked to capacity assessments and best interests proforma. It features case law updates and case studies.
It is important to separate clinical decision making from patient decision making. No patient can demand a clinically inappropriate treatment. However from the treatments available a person may refuse that treatment or choose between available options. This may also be done in their Best Interests where they lack capacity.
Court of Protection Guide for GPs and Primary Care staff
If you need advice regarding a specific situation and meeting your responsibilities under the Act then please contact the Mental Capacity and Deprivation of Liberty Strategic Lead via:
somicb.mentalcapacityanddol@nhs.net
01935 385154 / 07796276321
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Deprivation of Liberty Safeguards (DoLS)
In 2014 the Supreme Court stated that a person will be considered deprived of their liberty if they lack capacity and are (1) under continuous supervision and control, and (2) not free to leave.
This is referred to as the acid test, and means that a significant proportion of people in care are now considered deprived of their liberty.
In order to make their care arrangements lawful then theses individuals must receive additional scrutiny. In care homes and hospitals this is done via the Deprivation of Liberty Safeguards (DoLS) scheme. Where care is delivered in individual’s own homes or settings not registered by the CQC then authorisation must be sought directly from the Courts (community dols).
The significant increase in people being considered deprived of their liberty prompted the government to devise a replacement scheme, the Liberty Protection Safeguards. However, as of 16.01.2024 implementation is stayed with no intention of it progressing ‘within the lifetime of this Parliament.’
DoLS and Community dol orders only relate to where the person lives for their care and support, they do not cover individual acts of care and treatment. The presence of these orders however should serve as a prompt to consider capacity and best interests where care and treatment issues arise.
Information regarding the presence of DoLS / Community dols may be found through contacting dolsinformation@somerset.gov.uk.
If the individual is CHC funded then information may be found by contacting somicb.mentalcapacityanddol@nhs.net. For professionals, more information can be found on SiDeR.
Useful Links, Factsheets and Other Resources
Guidance for the Court of Protection Proceedings
A Basic Guide to the Court of Protection (2020)
An Easy Read Guide to Participation in CoP Proceedings (2020)
Introducing the Mental Capacity Act from the Social Care Institute for Excellence
Mental Capacity Resource Centre from 39 Essex Chambers
Mental Capacity Guidance Note from 39 Essex Chambers (2024)
Mental Capacity Act Code of Practice by The Stationery Office (2007)
Understanding when Someone is Deprived of their Liberty by The Law Society (2024)
Resources for Community Deprivation of Liberty
Court of Protection/Deprivation of Liberty Information for Family and Carers (2025)
Information Leaflet re the Role of a 1.2 Representative by the NHS
Advocacy and the Role of the 1.2 Representative Fact Sheet (2025)
Guidance for Identifying a Deprivation of Liberty
Identifying a Deprivation of Liberty: A Practical Guide by The Law Society (2024)
ICB's Mental Capacity Assessment and Best Interest Documents