Mental Capacity Act and DoLS in care homes: a registered manager's checklist

The Mental Capacity Act 2005 is the law that decides who makes decisions for a care home resident who cannot make them for themselves, and the Deprivation of Liberty Safeguards, or DoLS, are the part of that Act that authorises the restrictions a care home places on a person who lacks capacity to consent to them. Both still apply in England in late 2026: the Liberty Protection Safeguards have been passed but not brought into force. This is a registered manager's checklist for getting capacity assessments, best-interests decisions and DoLS right, and for evidencing them when an inspector asks.

The short answer

Assume every resident has capacity until you have assessed and shown otherwise, for the specific decision in front of you. Where a person lacks capacity for a decision, make it in their best interests using the section 4 checklist, choose the least restrictive option, and write down who was consulted and why. If the person is under continuous supervision and control, is not free to leave, and lacks capacity to consent to those arrangements, that is a deprivation of liberty and the care home must apply to the local authority for a DoLS authorisation. Keep a tracker of every application, every authorisation, every condition and every expiry date, notify CQC of outcomes, and audit a sample of capacity assessments monthly. Do those things consistently and you meet the law. Do them well and the residents keep as much control over their own lives as they can.

The five principles of the Mental Capacity Act

Section 1 of the Act sets out five principles that govern everything else. A person must be assumed to have capacity unless it is established that they lack it. A person is not to be treated as unable to make a decision unless all practicable steps to help them have been taken without success. A person is not to be treated as unable to make a decision merely because they make an unwise decision. An act done or decision made on behalf of a person who lacks capacity must be in their best interests. And before the act is done or the decision made, regard must be had to whether the purpose can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.

Every capacity assessment, best-interests record and DoLS application in your home should be able to show these five principles at work. The one most often breached in care homes is the second: staff decide that a person cannot decide without first trying to help them decide, at the right time of day, in the right place, with the right words or pictures. The third is the next most common: a resident with capacity who refuses a bath or wants a third glass of wine is not thereby lacking capacity.

At a glance: the parts of the framework

Capacity is decision-specific and time-specific

Nobody lacks capacity in general. A person lacks capacity to make a particular decision at a particular time. A resident with dementia may be unable to decide about a complex financial matter and entirely able to decide what to wear and whether to go to the day centre. A resident with a mental health condition may lack capacity during an acute episode and regain it a fortnight later. A resident with a learning disability may be able to decide about a hospital appointment if it is explained with pictures over several days and unable to decide if it is explained once in a corridor.

This has two consequences for records. First, a blanket statement that a resident lacks capacity is never acceptable, and a care plan that says so is wrong. Second, the assessment names the decision, the date and the circumstances. Where a decision recurs, such as daily personal care, one assessment can cover the recurring decision with a review date, but it still names the decision.

The two-stage test

Section 2 says a person lacks capacity if, at the material time, they are unable to make a decision for themselves because of an impairment of, or disturbance in the functioning of, the mind or brain. Section 3 says a person is unable to make a decision if they cannot do one or more of four things.

The functional test

Can the person understand the information relevant to the decision, retain it long enough to make the decision, use or weigh it as part of the process, and communicate their decision by any means? Record what information was given, how it was given, and which of the four elements the person could and could not do, with examples of what they said or did.

The diagnostic element and the causal link

Is there an impairment or disturbance of the mind or brain, temporary or permanent? Dementia, a learning disability, an acquired brain injury, delirium, the effects of alcohol, and severe mental illness all qualify. Then the causal question: is the inability to decide because of that impairment? If a person cannot decide because they have not been given the information in a form they can use, that is not a lack of capacity. It is a failure of support.

Practicable steps

Before concluding that a person lacks capacity, record the practicable steps taken to help them: time of day, environment, easy-read or pictures, a familiar person present, breaking the decision into parts, repeating the conversation on another day. An assessment with no evidence of support given is an assessment that has not applied the second principle.

Who assesses and when to write it down

The person who assesses capacity is the person proposing the decision. For personal care, that is usually the senior or nurse. For a change of placement, the social worker. For medical treatment, the GP or hospital clinician. Care home managers sometimes assume that only a doctor or a social worker can assess capacity. That is wrong, and it leads to care being delivered for months without any assessment because everyone is waiting for someone else.

Write a formal assessment whenever the decision is significant, whenever the person's capacity is in doubt, whenever the decision is contested by the person or the family, and whenever a restriction is being placed on the person. Day-to-day decisions where capacity is obvious do not need a form each time. But if a resident refuses medication three days running and staff decide to give it covertly, that is a formal assessment, a best-interests decision and a pharmacist and GP conversation, not a note in the daily log.

Steps to take if consent cannot be readily established

Staff are often asked in training to explain steps to take if consent cannot be readily established, and the answer is a short procedure. First, try again: different time, different words, different person, different setting. Second, if the person still cannot give or refuse consent, assess capacity for this decision and record it. Third, if they lack capacity, check whether there is a valid advance decision, a lasting power of attorney for health and welfare, or a court-appointed deputy whose authority covers the decision. Fourth, if none applies, make a best-interests decision using the section 4 checklist, consulting the people who know the person. Fifth, choose the least restrictive option that achieves the purpose. Sixth, record all of it and set a review date.

In an emergency, where delay would cause harm, staff act in what they reasonably believe to be the person's best interests, and the assessment and record follow as soon as practicable. Section 5 of the Act protects staff who act in this way, provided they took reasonable steps to establish capacity and reasonably believed the act was in the person's best interests.

Best-interests decisions: the section 4 checklist

Section 4 does not define best interests. It gives a checklist of things the decision-maker must do and consider.

1. Do not make the decision merely on the basis of the person's age, appearance, condition or behaviour.
2. Consider all the relevant circumstances, and in particular whether the person is likely to regain capacity and, if so, when. If the decision can wait, wait.
3. So far as reasonably practicable, permit and encourage the person to participate in the decision.
4. Consider the person's past and present wishes and feelings, including any written statement made when they had capacity, and the beliefs and values that would be likely to influence their decision.
5. Consult, where practicable and appropriate, anyone named by the person, carers and family, any attorney under a lasting power of attorney, and any deputy appointed by the court.
6. Where the decision relates to life-sustaining treatment, do not be motivated by a desire to bring about the person's death.
7. Consider whether there is a less restrictive way of achieving the purpose.
8. Record the decision, who made it, who was consulted, what they said, the options considered and why the chosen option is in the person's best interests.

Where there is nobody appropriate to consult and the decision concerns serious medical treatment or a change of accommodation, an Independent Mental Capacity Advocate must be instructed under sections 35 to 41. Record the referral and the IMCA's report.

Recording a best-interests decision

The record is the evidence, and most best-interests records are too thin. A good one states the decision to be made, confirms that a capacity assessment has been done and its date, lists every option considered including doing nothing, sets out the person's known wishes and how they were found out, names each person consulted and summarises what they said, explains why the chosen option was preferred and why the less restrictive options were not, and names the decision-maker, the date and the review date.

Where family members disagree with each other or with the home, record the disagreement and the reasons for the decision. Where the disagreement cannot be resolved, the route is a best-interests meeting and, if that fails, an application to the Court of Protection. Do not let a disputed decision drift for months on the basis that the family will come round. The care plan review is the natural place to check that decisions are still current; see how often to review a care plan.

Least restrictive option and restrictive practices

The fifth principle requires you to consider whether the purpose can be achieved in a less restrictive way. In care homes the restrictions that need this test include locked doors and keypads, bed rails, lap belts, sensor mats, one-to-one supervision, restricted access to the kitchen or to money, removal of items that could be used for self-harm, and observation at night. Each one is a restrictive practice and each one needs a reason, a capacity assessment, a best-interests decision, a less restrictive option considered and rejected, and a review date.

Keep a restrictive practice register for the home listing every restriction in use, the resident it applies to, the authority for it (consent, best interests, DoLS condition, Court order) and the review date. The register is how you notice that a door locked because of one resident two years ago is still locked for everyone, or that bed rails fitted after a fall have never been reviewed. It is also what an inspector will ask for under the Safe key question, and what the Right support, right care, right culture guidance expects in learning disability services.

Restraint under section 6

Section 6 permits restraint only if the person doing it reasonably believes it is necessary to prevent harm to the person, and the act is a proportionate response to the likelihood and seriousness of that harm. Restraint means using or threatening force to do something the person resists, or restricting their liberty of movement whether or not they resist. Holding a resident's arm while a dressing is changed is restraint. Standing in a doorway to stop someone leaving is restraint. Both can be lawful under section 6 if the test is met. Both must be recorded.

Repeated restraint is a signal, not a solution. If the same resident is being held for personal care every day, the plan is not working and the question is whether the deprivation of liberty threshold has been crossed and whether a positive behaviour support approach would remove the need. Record every episode on the incident system, review it, and count it at the governance meeting. An unrecorded restraint is the single most damaging thing an inspector can find in a learning disability home.

Covert medication

Giving medication hidden in food or drink to a person who would refuse it if they knew is a serious interference with their autonomy, and it is only lawful if the person lacks capacity to decide about the medication, the decision is in their best interests, and the least restrictive principle has been applied. The record needs a capacity assessment specific to the medication, a best-interests meeting involving the GP and pharmacist and the family or advocate, a written plan stating which medicines and how they will be given, confirmation from the pharmacist that crushing or mixing is safe, and a review date. Covert administration is also relevant to any DoLS application because it is a restriction, and the best-interests assessor will ask about it.

Covert medication for a person who has capacity and is refusing is not covert medication. It is assault. The distinction is the capacity assessment, and it must be in the file before the first dose. Your eMAR should show a covert flag against each affected medicine with the plan attached, so that agency staff cannot give it openly by mistake.

What is a deprivation of liberty: the acid test

The Supreme Court in Cheshire West in 2014 set the acid test. A person is deprived of their liberty if they are under continuous supervision and control, and are not free to leave, and lack capacity to consent to those arrangements. It does not matter whether the person objects, whether the placement is pleasant, whether the restrictions are in their best interests, or whether they would be more restricted somewhere else. Most residents of care homes who lack capacity to consent to being there meet the test, because the home supervises them, controls their day and would not let them walk out and not return.

Free to leave means free to leave permanently, not just to go to the shops. A resident who goes out every day with staff but would be brought back if they tried to move out is not free to leave. Continuous supervision and control means the home directs where the person is, what they do and who they see, even if kindly. If a resident lacks capacity for the decision to live and receive care in your home, and both limbs of the acid test apply, you must apply for a DoLS authorisation. Not applying is unlawful detention.

DoLS: urgent and standard authorisations

The care home is the managing authority. The local authority is the supervisory body. The home applies using the standard forms, usually Form 1, which combines a request for a standard authorisation and, where the deprivation is already happening or about to happen, the home's own urgent authorisation. An urgent authorisation lasts up to seven days and can be extended once by the supervisory body for up to a further seven days. A standard authorisation is granted after six assessments: age, mental health, mental capacity, best interests, eligibility and no refusals. It can last up to twelve months and can carry conditions.

The supervisory body is meant to complete the assessments within 21 days of a standard request. In practice, most local authorities have long backlogs and many residents wait months. That does not change the home's duty, which is to apply as soon as the acid test is met, record the application date, chase in writing at intervals, and keep the person's care as unrestricted as possible while waiting. A resident who is deprived of their liberty with an application in the queue is in a different position from one with no application at all, and the inspector knows the difference.

Conditions, the relevant person's representative and IMCAs

A standard authorisation may come with conditions: more community access, a review of medication, contact with family, work towards a less restrictive placement. Conditions are not suggestions. The home must comply and must be able to show it has. Put each condition into the care plan with an owner and a review date, and record progress at every care plan review.

Every authorised person has a relevant person's representative, usually a family member or a paid representative, whose job is to keep in touch, support the person and request a review or challenge the authorisation if needed. Record who the RPR is and how often they visit. A section 39A IMCA is appointed during the assessment where there is nobody to consult, and a section 39D IMCA can support the person and an unpaid RPR after authorisation. Know who these people are for each resident and make sure staff let them in.

The Court of Protection

DoLS only covers care homes and hospitals and only adults aged 18 and over. A deprivation of liberty in supported living, in the person's own home, or for a 16 or 17 year old, must be authorised by the Court of Protection. The Court also decides disputes about capacity and best interests, appoints deputies, and hears challenges to DoLS authorisations under section 21A. A person deprived of their liberty, or their RPR, has a right to challenge in the Court, with non-means-tested legal aid, and the home must support that rather than obstruct it.

Where a resident is objecting to being in the home, verbally or through their behaviour, the local authority and the RPR should be considering a section 21A challenge, and the home should record the objection and raise it. An objecting resident whose objection is never acted on is a serious concern.

Liberty Protection Safeguards: LPS meaning and where they stand

People searching for lps meaning want to know whether the Liberty Protection Safeguards have replaced DoLS. They have not. The Mental Capacity (Amendment) Act 2019 created the LPS scheme, which would extend authorisation to supported living and domestic settings, cover 16 and 17 year olds, and move responsibility to a wider range of responsible bodies including NHS bodies. Implementation was repeatedly delayed, and in 2023 the government announced that the scheme would not be brought into force during that parliament. As of late 2026 no commencement date has been set and DoLS remains the law in England.

What that means for a care home is simple: apply DoLS as it stands, keep your tracker current, and do not build processes around a scheme that is not in force. Keep an eye on announcements, because the direction of travel is still towards LPS, but do not tell staff or families that DoLS is about to end. It has been about to end for the better part of a decade.

Lasting powers of attorney, deputies and advance decisions

An attorney under a registered lasting power of attorney for health and welfare can make care and treatment decisions for a person who lacks capacity, within the scope of the LPA and in the person's best interests. An attorney under a property and financial affairs LPA can deal with money and property. A deputy is appointed by the Court of Protection where there is no LPA. Ask every family on admission whether an LPA exists, obtain a copy, check it is registered with the Office of the Public Guardian, and record which type it is. A relative who says they have power of attorney but cannot produce it does not have authority to make decisions.

An advance decision to refuse treatment, made when the person had capacity, is binding if it is valid and applicable. For life-sustaining treatment it must be in writing, signed and witnessed. Record any advance decision in the care plan and make sure it is visible to the GP and to ambulance crews, alongside any ReSPECT form or DNACPR decision.

CQC notifications for DoLS

Regulation 18 of the Care Quality Commission (Registration) Regulations 2009 requires the home to notify CQC of the outcome of any application to deprive a person of their liberty, whether under DoLS or through the Court. That means when the authorisation is granted, refused or withdrawn, not when the application is made. Use the DoLS notification form, include the dates and any conditions, and record the notification date in your tracker. Missed DoLS notifications are one of the most common registration breaches found at inspection. The full list of notifiable events is at CQC notifications: what to report.

Learning disability and autism: supported decision-making

In learning disability services the second principle does most of the work. The question is rarely whether the person has capacity in the abstract. It is whether anyone has put the effort into helping them decide. That means easy-read information, pictures and objects of reference, choices offered at the right time of day, a familiar member of staff, and decisions broken into steps and revisited. It means recording the person's communication method and using it. It means a capacity assessment that took a week, not ten minutes.

It also means being honest about restrictive practices. Locked kitchens, restricted access to the community, limits on money, one-to-one staffing and medication given for behaviour are all restrictions that need the full framework. The Right support, right care, right culture guidance expects to see people supported to take risks and make choices, and the DoLS conditions for a learning disability resident will often be about exactly that. See also safeguarding adults in care homes for how restraint and restriction connect to safeguarding.

Mental health services: the interface with the Mental Health Act

In a mental health residential service some residents may have been detained under the Mental Health Act 1983 in hospital and discharged on section 117 aftercare, on a community treatment order, or under guardianship. DoLS cannot be used to authorise psychiatric treatment for a person who objects and who could be detained under the Mental Health Act; that is the eligibility assessment. But most residents in a care home who lack capacity to consent to their placement, including those on section 117 aftercare, fall within DoLS in the normal way.

The practical rule: know which residents are subject to any Mental Health Act provision and what it authorises, keep the paperwork on file, and apply DoLS for the placement where the acid test is met and the person is not detained. Where you are unsure, ask the local authority DoLS team or the responsible clinician in writing and keep the answer.

The manager's monthly checklist

• Every resident who lacks capacity to consent to their placement has a DoLS application, an authorisation or a Court order, and the tracker shows the dates
• Every authorisation expiry date is at least four weeks away or a renewal has been submitted
• Every condition on an authorisation is in the care plan with an owner and evidence of progress
• Every RPR is named with contact details and a record of contact
• Every DoLS outcome has been notified to CQC and the date recorded
• A sample of five capacity assessments has been audited for decision-specificity, practicable steps and the four functional elements
• A sample of five best-interests records has been audited for options, consultees and least restrictive reasoning
• The restrictive practice register is current and every entry has a review date
• All restraint episodes in the month are recorded, reviewed and counted
• Every covert medication plan has a current capacity assessment, pharmacist confirmation and review date
• LPAs and deputyships are on file, registered, and their scope recorded
• Staff MCA and DoLS training is in date on the matrix

Training and the audit trail

Every member of care staff needs MCA and DoLS training at induction and refreshed at least every two years, and seniors and nurses need enough to complete assessments and best-interests records themselves. Training that consists of the five principles on a slide is not enough. Use scenarios from your own residents: the person who refuses personal care, the person who wants to go home, the person whose daughter says she has power of attorney. Test staff on what they would record.

The audit trail is what turns practice into evidence. Capacity assessments and best-interests records should be dated, attributed and versioned, and the DoLS tracker should show the sequence from application to authorisation to notification to review. Kiwi keeps these inside the resident's care record with every change audited, so a decision made in March can be shown as it was in March, and the tracker drives expiry alerts rather than relying on someone remembering. However you hold it, the test is whether you can produce a resident's complete MCA history in one sitting. Care records and CQC compliance show how those pieces fit together in one place.

Common mistakes

• A blanket statement in the care plan that the resident lacks capacity, with no decision named
• Capacity assessments done in one short conversation with no practicable steps recorded
• Best-interests records that name the decision and the outcome but not the options rejected or the people consulted
• No DoLS application because the resident is settled and does not object
• Authorisations that have expired with no renewal in progress
• Conditions on authorisations that nobody has read, let alone actioned
• Restraint used for personal care and recorded, if at all, as a behaviour note
• Covert medication started on a nurse's judgement without a capacity assessment or a pharmacist conversation

What good looks like on inspection day

An inspector will ask for the DoLS tracker and pick three residents. For each they will want the capacity assessment for the placement decision, the application and its date, the authorisation and its expiry, the conditions and what has been done about them, the RPR, and the CQC notification. They will then look at the care plan for restrictions and ask where the authority for each one is. They will pick a best-interests decision, perhaps covert medication or bed rails, and read the record for options, consultation and least restrictive reasoning. They will look at the restrictive practice register and the restraint log.

Then they will ask staff what the five principles are, what they would do if a resident refused personal care, and who the RPR is for a named resident. They will watch whether staff offer choices, knock before entering, and ask before doing. Inspection-ready evidence here is a tracker that reconciles with the files, records that show reasoning rather than conclusions, and a team that treats capacity as something to support rather than something to assess away. If you would like to see how a DoLS tracker with expiry alerts, versioned capacity assessments and a restrictive practice register look in one system, book a demo.

Final conclusion

The Mental Capacity Act asks care homes to do something hard: to treat every resident as a decision-maker until proved otherwise, and then, when proved otherwise, to decide for them as they would have decided for themselves. DoLS asks the home to admit when it is depriving someone of their liberty and to have that checked by someone outside. Neither is paperwork for its own sake. Assess capacity for the decision in front of you, help the person decide before concluding they cannot, record best interests with the options and the people consulted, choose the least restrictive option, apply for DoLS when the acid test is met, keep the tracker current, and notify CQC. The Liberty Protection Safeguards may one day change the mechanism. They will not change the principles.

Frequently asked

Are the Liberty Protection Safeguards in force in 2026?

No. The Mental Capacity (Amendment) Act 2019 created the LPS scheme, but it has not been commenced and no start date has been set. DoLS remains the law for care homes and hospitals in England, and care homes should keep applying it in full.

Can a care home resident lack capacity for everything?

No. Capacity is decision-specific and time-specific under the Mental Capacity Act, so a person may lack capacity for one decision and have it for another. A care plan that says a resident lacks capacity without naming a decision is wrong and will be challenged at inspection.

How long does a DoLS urgent authorisation last?

Up to seven days, granted by the care home itself as managing authority at the same time as it requests a standard authorisation. The supervisory body can extend it once for up to a further seven days. In practice standard authorisations often take much longer, so the home must record the application date and chase in writing.

What is the acid test for deprivation of liberty?

From the Supreme Court's Cheshire West judgment: the person is under continuous supervision and control, is not free to leave, and lacks capacity to consent to those arrangements. Whether they object or whether the placement is in their best interests makes no difference. If the test is met in a care home, a DoLS application is required.

Who can carry out a mental capacity assessment in a care home?

The person proposing the decision, which for day-to-day care is usually the senior carer or nurse. A doctor or social worker is not required for most decisions, though they assess for medical treatment or a change of placement. What matters is that the assessment is decision-specific, records the practicable steps taken to help the person, and covers the four functional elements.

Does a DoLS authorisation need to be reported to CQC?

Yes. Under Regulation 18 of the Registration Regulations the home must notify CQC of the outcome of any DoLS application or Court of Protection application, meaning when it is granted, refused or withdrawn. Record the notification date on your tracker, because missed DoLS notifications are a common finding.

Is giving medication covertly allowed under the Mental Capacity Act?

Only where the person lacks capacity to decide about the medication, a best-interests decision has been made with the GP and pharmacist, the least restrictive option has been considered and a written plan is in place. Covert medication for a person with capacity who is refusing is unlawful. The capacity assessment must be on file before the first hidden dose.

Sources

• Mental Capacity Act 2005
• Mental Capacity Act 2005 Code of Practice
• Deprivation of Liberty Safeguards Code of Practice (supplement to the MCA Code)
• P v Cheshire West and Chester Council and P and Q v Surrey County Council [2014] UKSC 19
• Mental Capacity (Amendment) Act 2019
• Care Quality Commission (Registration) Regulations 2009, Regulation 18
• CQC: Right support, right care, right culture
• Mental Health Act 1983