Mental Capacity Act and Deprivation of Liberty Safeguards: Bridging the Gap between Law and Practice

In health and social care, decisions about capacity, consent, and restriction of liberty are made every day often under pressure, and often in complex, emotionally charged situations.

For professionals, this means balancing legal frameworks with real world practice. For families, it can feel confusing, overwhelming, and sometimes even frightening.

Understanding how these decisions are made, and why, can help bring clarity, confidence, and better outcomes for everyone involved.

Mental Capacity and Decision Making in Practice

The Mental Capacity Act 2005 provides the legal framework in England and Wales for determining whether a person can make a specific decision at the time it needs to be made.

The Act is built on five key principles that underpin all decision-making in practice:

1. A person must be assumed to have capacity unless proven otherwise

2. A person must be supported to make their own decision wherever possible

3. A person is not to be treated as unable to make a decision simply because they make an unwise decision

4. Any act or decision made for someone who lacks capacity must be in their best interests

5. Any decision or action taken must be the least restrictive option available

For care staff, this means applying structured assessments based on these principles. For families, this can be difficult to understand, especially when a loved one’s decision feels risky or unexpected.

Safeguarding and Restriction of Liberty

Safeguarding is always a fundamental part of care. When a person lacks capacity and may be at risk, this responsibility becomes even more significant, requiring careful, lawful decision making to protect the person while respecting their rights. In some situations, care arrangements may amount to a deprivation of liberty. These must be authorised under the Deprivation of Liberty Safeguards.

Deprivation of Liberty: A deprivation of liberty occurs when a person is subject to continuous supervision and control and is not free to leave, and they do not have the mental capacity to consent to these arrangements under the Mental Capacity Act 2005.

Example: A person living in a care home may be supported with all their daily needs, supervised throughout the day, and not allowed to leave the building alone for their own safety. While this care is often provided with the best intentions, if the person does not have the capacity to consent, these restrictions may amount to a deprivation of liberty.

The DoLS system is designed to protect individuals but in practice, it can feel restrictive or confusing, particularly for families who may not fully understand the process or reasoning behind it.

DoLS are not about restricting freedom – they are meant to be the bridge between care and rights, ensuring that when someone cannot consent, their voice is still protected.

The Gap Between Policy and Practice

There is a clear gap between policy and practice in this area.

While legislation provides structure and safeguards, the reality is that services are often working under pressure. The DoLS system was not originally designed for the current level of demand, leading to delays and complexity in real world application.

This means:

• Staff are often making decisions while waiting for formal authorisation

• Families may feel uncertain or excluded

• Communication becomes critical

Reform and the Future: Liberty Protection Safeguards

The Mental Capacity (Amendment) Act 2019 introduced plans to replace DoLS with the Liberty Protection Safeguards (LPS).

The aim was to:

• Streamline the process

• Reduce delays

• Integrate authorisation into care planning

However, implementation was delayed, and as of May 2026, despite ongoing discussion and policy intent around reform, the proposed Liberty Protection Safeguards have not yet been implemented, and services continue to operate under the existing Deprivation of Liberty Safeguards framework.

What This Means in Practice

In today’s system, good practice relies on:

Clear, decision-specific capacity assessments

Capacity assessments should always relate to the specific decision being made at that moment, ensuring assumptions or generalisations about the person do not influence the outcomes.

Strong documentation

Record clearly how the decision was reached, including the evidence considered and the rationale, so that another professional can understand your reasoning if reviewed later.

Least restrictive approaches

Always consider whether there is a way to support the person’s safety and wellbeing that places fewer restrictions on their freedom or independence.

Involvement of families and advocates

Where appropriate, involve family members or advocates early to gather meaningful insight into the person’s wishes, history, and likely preferences.

Open, honest communication

Be transparent about decisions, explaining clearly what is happening and why, in a way that families and individuals can understand.

Confidence in applying the law under pressure

Use the principles of the Mental Capacity Act 2005 consistently, even in complex or time-pressured situations, to ensure decisions remain lawful and defensible

Ultimately, this is about ensuring that care is lawful, person centred and respectful of an individual’s rights and dignity.

Reflection Questions for Care Teams

Use these in team meetings, supervision, or training:

• How confident are we in applying the principles of the Mental Capacity Act consistently?

• Do we clearly evidence how capacity decisions are made?

• How do we make safe decisions when authorisations are delayed?

• Where do we feel most unsure in practice?

• How effectively do we involve families in decision-making?

• Do we explain restrictions in a way that families can understand?

• Are we confident in distinguishing between an unwise decision and lack of capacity?

• What would help us feel more confident?

Reflection Questions for Families, Friends and Carers

• Do I understand how decisions about capacity are being made for my loved one?

• Have I been given clear explanations about why certain decisions are in place?

• Do I feel involved in discussions about care and decision making?

• Have I had the opportunity to share my knowledge of the person’s wishes, values, and preferences?

• Do I understand why certain restrictions are in place?

• Has anyone explained whether these restrictions are the least restrictive option?

• Do I feel confident that decisions are being made in my loved one’s best interests?

• If I disagree or feel unsure, do I know who to speak to?

• What support do I need to better understand the system?

• Would it help to speak to someone, attend a session, or ask more questions?

Working within the Mental Capacity Act and Deprivation of Liberty Safeguards framework is not always straightforward, especially in a system under pressure. But with clear understanding, strong communication, and a focus on person centred care, it is possible to navigate these challenges in a way that protects both individuals and those supporting them.

If you are a care provider looking to build staff confidence in MCA and DoLS, or a family member seeking clearer understanding, Connect Training offers practical, accessible sessions designed to support real life situations.