Preparing for a CQC Inspection: PART FIVE

Mental Capacity Act

The implementation of the Mental Capacity Act 2005 is crucial for providers to achieve a Good or Outstanding rating from CQC, ensuring the effectiveness of the service and the safety of those receiving care. Your staff should be knowledgeable about the Act's principles and demonstrate decision-making that is in the best interests of individuals lacking capacity. 

CQC offers guidance for providers on the Mental Capacity Act. It's important to be aware that the act will be amended by the Liberty Protection Safeguards, replacing the Deprivation of Liberty Standards. Providers should familiarise themselves with the changes and how LPS will operate. SCIE provides an overview of LPS: Liberty Protection Safeguards (LPS) Law developments.

Deprivation of Liberty Safeguards

Deprivation of liberty is typically associated with the Deprivation of Liberty Safeguards (DoLS), which are currently only applicable in residential and healthcare settings. However, it is possible that a situation may arise where a care worker providing care in a person's own home may need to restrict their liberty, such as in the case of live-in care for someone with severe dementia who may wander off.

If you believe that the care and procedures being implemented could result in a deprivation of the person's liberty:

  • assess whether the person lacks the capacity to consent to such restrictions. If they lack capacity, you must document this decision

  • notify the local authority or Clinical Commissioning Group, depending on who is funding the care, of the potential deprivation of liberty

  • inform the local authority even if the person pays for their own care, so that they can assess the situation and determine whether a deprivation of liberty exists and, if so, whether they need to seek authorisation from the Court of Protection

It is important to consider whether there are less restrictive options available to protect the person being supported, such as the use of telecare.

Liberty Protection Safeguards

The Liberty Protection Safeguards (LPS) will replace the Deprivation of Liberty Standards (DoLS) scheme, which has been criticised for being overly complicated and bureaucratic. LPS will apply to people in care homes, hospitals, supported accommodation, Shared Lives accommodation, and their own homes, and to everyone from the age of 16 years.

The key differences between LPS and DoLS are that LPS are firmly rooted in the Mental Capacity Act (MCA) 2005, safeguarding the rights of people who lack the mental capacity to consent to their arrangements for care, and will need to be authorised in advance by the 'Responsible Body'.

The expected implementation date of LPS was April 2022, but due to the impact of COVID-19, it has been delayed. A public consultation of the draft Regulations and Code of Practice for LPS was carried out in March 2021, but it is unlikely that LPS will be fully implemented before the end of 2023.

Consent to Care

The Health and Social Care Act 2008 Regulation 11 emphasises the importance of obtaining consent from people receiving homecare for their initial care plan and all subsequent reviews, provided they have the capacity to do so.

When a person lacks the capacity to consent, the Mental Capacity Act Code of Practice should be followed, and the NICE guidance on decision-making and mental capacity provides helpful information.

If a person lacks capacity, CQC will inquire whether they have a Lasting Power of Attorney (LPA), a Court Appointed Deputy, or an Advance Decision to Refuse Treatment (ADRT). The Mental Capacity Act 2005 introduced the role of the independent mental capacity advocate (IMCA) as a legal safeguard for people who lack the capacity to make specific important decisions.

CQC expects care providers to make decisions about care in line with the Mental Capacity Act 2005, based on the person's best interests, and to perform formal risk assessments to identify and mitigate risks. While next of kin, family members, and family carers can be consulted about care plan content, they do not have an automatic right to consent to a care plan on a person's behalf unless they have been legally appointed to do so.

Restraint, Segregation and Seclusion  

In April 2021, CQC mandated that all health and social care services should only use training in restrictive practices that adhere to the Restraint Reduction Network training standards.

CQC also published a report called "Who Cares" in October 2020 and has since released updates regarding the progress made on the recommendations in the report.

Further updates, published by CQC, describe the progress made on the recommendations given in the above report.


Find our about inspections and your Provider Information Return, KLOE's and Ratings in Part Six, Preparing for a CQC Inspection. 

If you have any questions about CQC inspections join us in Care Begins at Home, a group created to provide free knowledge and information to care providers and family carers.