Mental Capacity Act Principles and DoLS Explained

The Mental Capacity Act 2005 is the law in England and Wales for supporting people aged 16 and over who may not be able to make some decisions for themselves. It rests on five principles: assume capacity, help people decide, respect unwise decisions, act in their best interests and choose the less restrictive option. DoLS are its safeguards for people deprived of their liberty in care homes and hospitals.

Where the Act applies

The Act covers England and Wales. Scotland has the Adults with Incapacity (Scotland) Act 2000, and Northern Ireland has the Mental Capacity Act (Northern Ireland) 2016, which is partly in force. Anyone paid to care or working in a professional role must have regard to the Mental Capacity Act Code of Practice. In England, CQC's Regulation 11 requires providers to act in line with the Act when someone lacks capacity to consent.

The 5 principles of the Mental Capacity Act

The principles sit in section 1 of the Act. Here's how each looks on shift.

1. Assume capacity. A resident with dementia still chooses what to wear and whether to join the quiz. A diagnosis alone proves nothing.
2. Help people decide. Nobody is treated as unable to decide until all practicable steps to help have failed. For someone with a learning disability deciding about a flu jab, that might mean pictures, plain words, a quiet room and asking when they're most alert.
3. Unwise isn't incapable. A man with diabetes who understands the risks and still wants a second slice of cake is making his own choice.
4. Best interests. Anything done for someone who lacks capacity must be in their best interests, not those of the rota, the family or the home.
5. Less restrictive option. Ask whether the same purpose can be met with less restriction. A low bed and a sensor mat may do the job of bed rails.

How to assess capacity

Capacity is decision-specific and time-specific. Someone may manage a choice about lunch but not about selling their house, or decide in the morning but not at night. The Supreme Court (A Local Authority v JB, 2021) and the Court of Appeal (2024) have said to ask the questions in sections 2 and 3 in this order:

1. Can the person make this decision? They can't if they're unable to understand the relevant information, retain it, use or weigh it, or communicate their decision by any means.
2. If not, is that because of an impairment of, or disturbance in the functioning of, the mind or brain? There must be a clear causal link, such as delirium from a urine infection.

The 2007 Code still puts the diagnosis question first, but the Court of Appeal has said assessments should follow the Supreme Court's order. Capacity is never judged on age, appearance, a condition or behaviour alone.

Best interests in practice

The decision-maker is usually whoever is about to act: the care worker for personal care, the nurse or doctor for treatment. If an attorney or deputy holds authority for that decision, they decide. Section 4 says to consider:

• the person's past and present wishes, feelings, beliefs and values
• whether they may regain capacity, and whether the decision can wait
• involving them as fully as possible
• the views of family, carers and anyone they've named

For serious medical treatment, or a long-term move arranged by the NHS or local authority, where there's nobody appropriate to consult apart from paid staff, an independent mental capacity advocate (IMCA) must be instructed.

What is DoLS?

The Deprivation of Liberty Safeguards are the legal process for people aged 18 and over who lack capacity to consent to their care arrangements and are, or may be, deprived of their liberty in a care home or hospital.

• Who applies: the care home or hospital (the "managing authority").
• Who authorises: the "supervisory body". In England that's the local authority, usually where the person is ordinarily resident. Wales has different arrangements for hospitals.
• Standard authorisation: granted after six assessments (age, mental health, mental capacity, best interests, eligibility and no refusals), for up to one year.
• Urgent authorisation: given by the care home or hospital itself when the need is immediate, alongside a standard request. It lasts up to seven days, and the supervisory body can extend it once, by up to seven days, in exceptional circumstances.

In England, providers must also notify CQC of each request and its outcome. DoLS don't cover supported living or someone's own home: a deprivation of liberty there needs authorising by the Court of Protection. Young people aged 16 and 17 also need a court route, as DoLS start at 18.

The acid test, and what changed in June 2026

From 2014, Cheshire West set an "acid test": a person lacking capacity was deprived of their liberty if they were under continuous supervision and control and not free to leave. In June 2026, in a reference from the Attorney General for Northern Ireland, the Supreme Court overruled it. DHSC's guidance on the judgment says the change applies with immediate effect. In summary:

• There's no single test. It depends on the type, duration, effects and manner of the restrictions, whether the person objects, the purpose of the arrangements and how normal they are.
• A person who lacks capacity under the Act may still give valid consent to their arrangements, but where there's serious doubt, consent can't be assumed.
• Objection matters: trying to leave, refusing care, restraint and covert or sedating medication all point towards a deprivation of liberty.
• If in doubt, keep using DoLS or the court route.

Local authorities are reviewing existing authorisations, and further guidance is awaited.

Where are the Liberty Protection Safeguards?

The Liberty Protection Safeguards (LPS) were created by the Mental Capacity (Amendment) Act 2019 to replace DoLS. Implementation was delayed in 2021 and, in April 2023, put back beyond the life of that Parliament. In October 2025 the government said it would consult on implementing LPS alongside a revised Code of Practice. As at October 2026, LPS aren't in force and DoLS remain the system you work with.

What staff at each level need to know

• Care and support workers: the five principles, supporting people to decide, everyday best interests decisions, and spotting and reporting restrictions or objection.
• Seniors and nurses: assessing and recording capacity for a specific decision, leading best interests decisions, and checking what an attorney can decide.
• Managers: DoLS applications, urgent authorisations, Court of Protection referrals, CQC notifications and the 2026 change.

Recording capacity and best interests decisions

The Code says everyday decisions don't need formal paperwork. When there's a specific, significant decision and a real reason to doubt capacity, write down the decision, the information given and how, the person's response, your conclusion and why, who you consulted, and the options considered. Since the 2026 ruling, record wishes, feelings and behaviour carefully too. See our defensible documentation training, and remember restrictions often overlap with adult safeguarding.

How Kasorb can help

Our Mental Capacity Act and DoLS training comes in two levels. The half-day awareness course, on-site or live online, is for all staff supporting adults who may lack capacity: the five principles, assessing capacity, best interests and recording, IMCAs, lasting powers of attorney, DoLS, and restraint and restrictions. The full-day advanced course, live online for managers and senior staff, adds the DoLS application process, 16 and 17-year-olds and an in-depth case study. It covers the law in England and Wales, and certificates are emailed the next day.

This guide summarises the law and guidance; it isn't legal advice.

FAQs

What are the 5 principles of the Mental Capacity Act?

Assume a person has capacity unless it's established they don't. Take all practicable steps to help them decide. Don't treat an unwise decision as a lack of capacity. Act in the best interests of anyone who lacks capacity. Consider whether there's a less restrictive way to achieve the same purpose.

What is DoLS in a care home?

DoLS is the legal process for authorising a deprivation of liberty for someone aged 18 or over who lacks capacity to consent to their care arrangements. The care home applies to the supervisory body, which in England is the local authority. A standard authorisation can last up to one year.

Is the Cheshire West acid test still used?

No. The Supreme Court overruled it on 2 June 2026. Whether someone is deprived of their liberty now depends on several factors, including the restrictions, whether the person objects and the purpose of the arrangements. Where you're in doubt, DHSC guidance says to keep using DoLS.

Have the Liberty Protection Safeguards replaced DoLS?

No. LPS were created by the Mental Capacity (Amendment) Act 2019 but haven't been brought into force. The government said in October 2025 that it would consult on implementing them. For now, DoLS remain the process in care homes and hospitals in England and Wales.