Navigate this page
Back to Putting the Mental Capacity Act into Practice


Information for individuals and organisations across Somerset who wish to understand their responsibilities in relation to people who may lack mental capacity to make decisions for themselves

IntroductionThe Mental Capacity Act 2005 (MCA)Deprivation of Liberty Safeguards (DoLS)Advocacy


This page contains some guidance documents produced by both Council and NHS organisations in Somerset, as well as a number of links to documents produced nationally, either by government or by other local authorities or charities.

Some items are shared with professionals in mind but others are aimed at members of the public who wish to understand this area better. There are a number of links to documents in easy-to-read formats.

This resource will be maintained by the SSAB’s Mental Capacity Act sub-group. The group meets quarterly and comprises the lead officers with MCA or DOLS responsibilities from:

  • Somerset Council
  • Musgrove Park Hospital
  • Somerset Partnership
  • Yeovil District Hospital
  • NHS Somerset Integrated Care Board (ICB)
  • Swan Advocacy, which is contracted to provide an Independent Mental Capacity Advocacy (IMCA) service in
  • Somerset
  • Registered Care Providers Association (RCPA)

We need your help!

The list is by no means exhaustive and if you have any comments, or recommendations or have come across or produced something we could include we would like to hear from you. Please contact us at:

The Mental Capacity Act 2005 (MCA)

The Mental Capacity Act 2005 (MCA) is designed to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment. It applies to people aged 16 and over.

It covers decisions about day-to-day things like what to wear or what to buy for the weekly shop, or serious life-changing decisions like whether to move into a care home or have major surgery.

Examples of people who may lack capacity include those with:

  • dementia
  • a severe learning disability
  • a brain injury
  • a mental health illness
  • a stroke
  • unconsciousness caused by an anaesthetic or sudden accident

But just because a person has one of these health conditions doesn’t necessarily mean they lack the capacity to make a specific decision.

Read more about the mental capacity act

Someone can lack the capacity to make some decisions (for example, to decide on complex financial issues) but still have the capacity to make other decisions (for example, to decide what items to buy at the local shop).

The MCA says:

  • assume a person has the capacity to make a decision themselves unless it’s proved otherwise
  • wherever possible, help people to make their own decisions
  • don’t treat a person as lacking the capacity to make a decision just because they make an unwise decision
  • if you make a decision for someone who doesn’t have the capacity, it must be in their best interests
  • treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms

The MCA also allows people to express their preferences for care and treatment, and to appoint a trusted person to make a decision on their behalf should they lack capacity in the future.

Where someone doesn’t have a trusted person to represent them or make a decision on their behalf, or where there are concerns about the trusted person, they should be provided with an independent advocate, who will support them to make decisions in certain situations, such as serious treatment or where the individual might have significant restrictions placed on their freedom and rights in their best interests.

How is mental capacity assessed?

The MCA sets out a 2-stage test of capacity:

  1. Does the person have an impairment of their mind or brain, whether as a result of an illness, or external factors such as alcohol or drug use?
  2. Does the impairment mean the person is unable to make a specific decision when they need to? People can lack the capacity to make some decisions but have the capacity to make others. Mental capacity can also fluctuate with time – someone may lack capacity at one point in time but may be able to make the same decision at a later point in time.

Where appropriate, people should be allowed the time to make a decision themselves.

The MCA says a person is unable to make a decision if they can’t:

  • understand the information relevant to the decision
  • retain that information
  • use or weigh up that information as part of the process of making the decision

Helping people make their own decisions

Before deciding a person lacks capacity, it’s important to take steps to enable them to try to make the decision themselves.

For example:

  • does the person have all the relevant information they need?
  • have they been given information on any alternatives?
  • could information be explained or presented in a way that’s easier for them to understand (for example, by
  • using simple language or visual aids)?
  • have different methods of communication been explored, such as non-verbal communication?
  • could anyone else help with communication, such as a family member, carer or advocate?
  • are there particular times of day when the person’s understanding is better?
  • are there particular locations where the person may feel more at ease?
  • could the decision be delayed until they are better able to make the decision? For example, the person
  • might lack capacity on a temporary basis as a result of an infection.

Is the decision in their best interests?

If someone lacks the capacity to make a decision and the decision needs to be made for them, the MCA states the decision must be made in their best interests.

The MCA sets out a checklist to consider when deciding what’s in a person’s best interests.

It says you should:

  • encourage participation – do whatever’s possible to permit or encourage the person to take part
  • identify all relevant circumstances – try to identify the things the individual lacking capacity would take into
  • account if they were making the decision themselves
  • find out the person’s views – including their past and present wishes and feelings, and any beliefs or values
  • avoid discrimination – don’t make assumptions on the basis of age, appearance, condition or behaviour
  • assess whether the person might regain capacity – if they might, could the decision be postponed?

It’s vital to consult with others for their views about the person’s best interests.

In particular, try to consult:

  • anyone previously named by the individual
  • anyone engaged in caring for them
  • close relatives and friends
  • any attorney appointed under a Lasting Power of Attorney or Enduring Power of Attorney
  • any deputy appointed by the Court of Protection to make decisions for the person.

Finding the least restrictive option

Before you make a decision or act on behalf of someone who lacks capacity, always question if you can do something else that would interfere less with their basic rights and freedoms.

This is called finding the “least restrictive alternative”. It includes considering whether there’s a need to act or make a decision at all.

Where there’s more than one option, it’s important to explore ways that would be less restrictive or allow the most freedom for a person who lacks capacity.

But the final decision must always allow the original purpose of the decision or act to be achieved.

Any decision or action must still be in the best interests of the person who lacks capacity.

So sometimes it may be necessary to choose an option that isn’t the least restrictive alternative if that option is in the person’s best interests.

Advance statements and decisions

An advance statement is a written statement that sets down a person’s preferences, wishes, beliefs and values regarding their future care. It’s not legally binding.

The aim is to provide a guide for anyone who might have to make decisions in a person’s best interests if that person has lost the capacity to make decisions or communicate their decision.

An advance statement can cover any aspect of a person’s future health or social care.

This could include:

  • how they want any religious or spiritual beliefs they hold to be reflected in their care
  • where they would like to be cared for – for example, at home or in a hospital, nursing home or hospice
  • how they like to do things – for example, if they prefer a shower instead of a bath, or like to sleep with the light on
  • concerns about practical issues – for example, who will look after their pet if they become ill

Find out more about making advance statements.

An advance decision (sometimes known as an advance decision to refuse treatment, an ADRT, or a living will) is a legally binding decision that allows someone aged 18 or over, while still capable, to refuse specified medical treatment for a time in the future when they may lack the capacity to consent to or refuse that treatment.

An advance decision must be valid and applicable to current circumstances. If it is, it has the same effect as a decision made by a person with capacity – healthcare professionals must follow the decision.

If the advance decision refuses life-sustaining treatment, it must:

  • be in writing, signed and witnessed
  • state clearly that the decision applies even if life is at risk

People who make an advance decision may wish to consider letting their family, friends and carers know about it.

Find out more about advance decisions.

Lasting Powers of Attorney

You can grant a Lasting Power of Attorney (LPA) to another person (or people) to enable them to make decisions about your health and welfare, or decisions about your property and financial affairs.

Separate legal documents are made for each of these decisions, appointing one or more attorneys for each.

An Enduring Power of Attorney (EPA) under the previous law was restricted to making decisions over property and affairs, which includes financial affairs and accessing the person’s information.

An EPA made before the Mental Capacity Act came into force on October 1 2007 remains valid.

Powers of attorney can be made at any time when the person making it has the mental capacity to do so, provided they’re 18 or over.

Both an EPA and LPA must be registered. An LPA can be registered at any time, but a personal welfare LPA will only be effective once the person has lost the capacity to make their own decisions.

When acting under an LPA, an attorney (the appointed person) must:

  • make sure the MCA’s statutory principles are followed
  • check whether the person has the capacity to make that particular decision for themselves – if they do, a personal welfare LPA can’t be used and the person must make the decision

In addition, the Court of Protection will be able to appoint deputies who can also make decisions on health welfare and financial matters if the person concerned lacks the capacity to make a decision.

They’ll come into action when the court needs to delegate an ongoing series of decisions rather than one decision.

If the person concerned already has an LPA appointed, they won’t normally need a deputy as well.

The Office of the Public Guardian registers LPAs and EPAs, and supervises court-appointed deputies.

It provides evidence to the Court of Protection and information and guidance to the public.

The Public Guardian works with a range of agencies, such as the financial sector, police and social services, to investigate concerns.

The Court of Protection

The Court of Protection oversees the operation of the Mental Capacity Act and deals with all issues, including financial and serious healthcare matters, concerning people who lack the mental capacity to make their own decisions.

The court also tries to resolve all disputes when the person’s carer, healthcare worker or social worker disagrees about what’s in the person’s best interests, or when the views of the attorneys conflict in relation to property and welfare.

The court hears important cases, such as whether the NHS should withdraw treatment, whether a serious medical treatment decision is in a person’s best interests, or whether it’s in a person’s best interests to be deprived of their liberty.

Cases can be brought to the court by family members, as well as advocates and professionals involved in decisions.

Professionals’ duties under the Mental Capacity Act

The Mental Capacity Act applies to all professions – doctors, nurses, social workers, occupational therapists, healthcare assistants, and support staff.

These staff and their employers have a duty to ensure they know how to use it.

The National Mental Capacity Forum

The National Mental Capacity Forum is a joint initiative of the Ministry of Justice and the Department of Health and Social Care. Its purpose is to work with stakeholders from health and social care to identify actions which member organisations can pursue, especially at a local level, to improve implementation of the MCA. As part of its work, it has arranged a series of rapid-response NCMF Webinars to be hosted by the Essex Autonomy Project. Please return to this page to find information about registration, as well as materials from the webinars themselves.

Please use this link to find out more, including resignation details for webinars.

Deprivation of Liberty Safeguards (DoLS)

What are the Deprivation of Liberty Safeguards?

The Deprivation of Liberty Safeguards, or DoLS, come under the Mental Capacity Act. They currently apply to people living in hospitals, care homes and nursing homes. The law says that no one should be deprived of their liberty unless this has been done through a process prescribed by law and that they have access to a right of appeal. The DoLS are necessary to make sure that any deprivation of liberty is lawful.

The Acid Test

The definition of a deprivation of liberty, often referred to as the “Acid Test”, must be met for the person to be considered to be deprived of their liberty. The Acid Test looks at the following:

  • does the person lack the capacity to make a decision about where they are living and what their care and treatment needs are?
  • are they subject to continuous supervision and control?
  • are they not free to leave or to live elsewhere without the permission of others?
  • are their care and treatment “imputable to the state”? (this means is there any state involvement in their care and treatment, would include funding of the placement or hospital, and it would also include the place being regulated by the state, such as being monitored by the Care Quality Commission or indeed if the local authority has been made aware of the person in some way)

If the answer to all of these questions is “yes” then the person is being deprived of their liberty and this should then be authorised by the local authority (also referred to as the Supervisory Body). The hospital or care home (also referred to as the Managing Authority) should make an application for a deprivation of liberty safeguards authorisation and, where possible, this should be done in advance of the person moving to the placement.

For further information, please see SCIE – Deprivation of Liberty Safeguards at a glance.


The Law Society has issued comprehensive guidance on the law relating to the deprivation of liberty safeguards.

The safeguards aim to ensure that those who lack capacity and are residing in care homes, hospitals and supported living environments are not subject to overly restrictive measures in their day-to-day lives.

The guidance was commissioned by the Department of Health and aims to help solicitors and frontline health and social care professionals identify when a deprivation of liberty may be occurring in a number of health and care settings. It uses case scenarios to explain the law, following the landmark judgement of the Supreme Court in the case of Cheshire West (2014).

Quick reference sheets included in the guidance also highlight relevant liberty-restricting factors and key questions for practitioners relating to each individual setting.

How to request a DoLS

If you are a Managing Authority, for example, a care home or hospital, use this form to request a standard or urgent Deprivation of Liberty Safeguards.


In some cases, you have the legal right to an advocate. This is called Statutory Advocacy.

Swan Advocacy are the commissioned provider of Statutory Advocacy services in Somerset.

In England and Wales there are four different types of Statutory Advocacy:

  • Mental Health
  • Care Act
  • Mental Capacity
  • Health Complaints

Swan Advocacy also work with clients on generic (sometimes called ‘community’) advocacy and is also commissioned to provide the Victims of Crime Advocacy Service in Somerset (VOCAS).

Last reviewed: November 6, 2023 by Sophie

Next review due: May 6, 2024

Back to top