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Mental Capacity Act: adult social care services

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Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards

The Mental Capacity Act 2005 sets out what must be done to make sure that the human rights of people who may lack mental capacity to make decisions are protected, including when balancing autonomy and protection in relation to consent or refusal of care or treatment.

This includes decisions about restricting people’s liberty and depriving people of their liberty so that they get the care and treatment they need where they do not have mental capacity to make decisions about this. If the location is a care home or hospital, CQC is required by law to monitor how the Deprivation of Liberty Safeguards are being used, and to report on what we find.

Read more about the Mental Capacity Act, including the legal definition of a ‘care home’ and ‘hospital’. Providers of care homes and hospitals are required to submit applications to a ‘supervisory body’ for authority to deprive people of their liberty. Other providers must submit their applications to the Court of Protection.

Inspectors look at restriction and deprivation of liberty during CQC inspections. This can be appropriate but must be undertaken lawfully; inspections will check whether the Mental Capacity Act code of practice was followed properly. A Supreme Court judgement has clarified the scope of restrictions that may amount to deprivation of liberty. Multiple restrictions of liberty can together amount to deprivation of liberty. Inspectors will consider this during inspections, and whether providers are monitoring practice to ensure that people’s rights and associated legal requirements are being recognised and met.

Last updated:
05 April 2019