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Mental Capacity Act and Deprivation of Liberty Safeguards: NHS trusts

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Mental Capacity Act

If your service provides care or support for an adult who has (or appears to have) difficulty making informed decisions about their care, treatment or support, you may need to refer to the Mental Capacity Act 2005. This applies to all types of service provider.

The Mental Capacity Act helps to safeguard the human rights of people aged 16 and over who lack (or may lack) mental capacity to make decisions. This may be because of a lifelong learning disability or a more recent short-term or long-term impairment resulting from injury or illness.

This includes decisions about whether or not to consent to care or treatment.

Your staff need to be able to identify situations where the Mental Capacity Act may be relevant and know what steps to take to maximise and assess a person’s capacity. If it is impaired, staff must know how to ensure that decisions made on the person’s behalf are in their best interests.

Deprivation of Liberty Safeguards

The Safeguards are part of the Mental Capacity Act. If you apply to deprive a person of their liberty using the safeguards you must tell us about the outcome of the application.

CQC has a duty to monitor the use of Deprivation of Liberty Safeguards in all hospitals and care homes in England. When we are inspecting and we see that a person has been deprived of their liberty, we will check that you have the correct authorisation and that you have met any conditions that the authorising body imposed.

We look for evidence that you have tried to minimise restrictions on the person’s freedom to a level that ensures their safety and wellbeing.

When we inspect your service, we specifically look at how well you are using the Mental Capacity Act, including the Deprivation of Liberty Safeguards. We report on this under the effective key question, alongside your approach to consent and the evidence we gather will inform our decision when we give a rating.

Last updated:
05 April 2019