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Understanding mental capacity and deprivation of liberty

This article explains what you need to know about mental capacity, best interest decisions, and deprivation of liberty.

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Written by Oliver Ross
Updated over 2 weeks ago

What is mental capacity?

Mental capacity is a person’s ability to make a specific decision at a specific time.

A person may:

  • Have capacity for some decisions but not others

  • Have capacity one day and not the next (capacity can fluctuate)

  • Make decisions you don’t agree with — this does not mean they lack capacity

The 5 key principles you must follow

  1. Assume capacity unless proven otherwise

  2. Support decision-making (use simple language, visuals, time, calm environments)

  3. Unwise decisions are allowed

  4. Best interests apply only if someone lacks capacity

  5. Use the least restrictive option

Do carers complete mental capacity assessments?

❌ No — carers do not complete formal capacity assessments.

✅ Yes — carers do contribute by:

  • Observing understanding, communication, confusion, or distress

  • Noting changes in behaviour or decision-making

  • Escalating concerns promptly

If you are worried about someone’s ability to make a decision:
👉 Report this to the Care Manager or on-call team immediately

What is a best interest decision?

If a person is assessed as lacking capacity for a specific decision, a decision may be made on their behalf, but only if it is:

  • In their best interests

  • The least restrictive option

  • Made after consulting relevant people (family, advocates, professionals)

As a carer, your role is to:

  • Support the person to be involved as much as possible

  • Share observations

  • Follow the agreed care plan

What is Deprivation of Liberty?

A person may be deprived of their liberty if both of the following apply:

  • They are under continuous supervision and control

  • They are not free to leave

This is known as the Acid Test.

Even in home care, restrictions can still amount to a deprivation of liberty.

What should you do if you’re concerned?

If you think someone may be:

  • Being restricted too much

  • Unable to make decisions safely

  • Controlled in a way that feels excessive or unsafe

👉 You must report this immediately to:

  • The Registered Care Manager

  • Or the on-call / care management team

You will never be penalised for raising concerns in good faith.

Restraint and restrictions – what carers must know

  • Restraint must never be used for convenience or punishment

  • Any restriction must be:

    • Necessary to prevent harm

    • Proportionate

    • The least restrictive option

  • Medication must never be used to control behaviour unless:

    • Prescribed

    • Clinically justified

    • Documented and reviewed

If you are unsure — do not proceed. Escalate.

Advocacy and representatives

If a person lacks capacity:

  • They may have a Lasting Power of Attorney (LPA) or Deputy

  • If they have no appropriate family or friends, an IMCA (Independent Mental Capacity Advocate) may be involved

Care managers will handle this — carers should support and cooperate.

Your responsibilities as a carer

You must:

  • Respect people’s rights and choices

  • Support decision-making wherever possible

  • Follow care plans and best-interest decisions

  • Report concerns about capacity or restrictions

  • Record relevant observations clearly

You are not expected to make legal decisions alone.

When in doubt

If you are unsure about:

  • Capacity

  • Consent

  • Restrictions

  • Best interests

👉 Pause and escalate to the care management team.

Doing the right thing protects the person — and you.

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