Mental capacity, deprivation of liberty & Court of Protection

Why mental capacity legal support matters

Mental capacity law is a complex and challenging area. Understanding obligations under the Mental Capacity Act 2005 is crucial for organisations supporting individuals who may be unable to make certain decisions for themselves. It ensures autonomy is respected wherever possible, and that decisions are made lawfully and, in a person’s best interests where it is not.

Getting this right can be the difference between protecting a person’s liberty and acting without lawful authority. In practice, organisations are often making high-stakes decisions in real time, balancing risk, safeguarding responsibilities and the needs of the individual.

Many of the individuals you support have complex and challenging needs, requiring intensive and sometimes restrictive packages of care. These situations are often ethically sensitive and legally demanding and getting them wrong can expose individuals to harm and create significant legal, regulatory and reputational risk.

Specialist advice helps organisations navigate these highly fact-specific scenarios with confidence, ensuring individuals are protected, empowered and treated in accordance with the law while reducing organisational risk.

How we can help you

When mental capacity issues arise, organisations are typically balancing two priorities: doing the right thing for the individual while also managing legal, regulatory and operational risk.

We provide comprehensive support from developing robust frameworks and policies to advising on live, high-risk cases and supporting organisations in relation to proceedings before the Court of Protection.

This includes practical, day-to-day advice on complex capacity questions, promoting consistency in best interest decision-making, and supporting organisations to challenge or respond to decisions made by others, including commissioners, where arrangements are disputed or difficult to deliver safely.

We understand the realities of frontline service delivery. We regularly advise on complex care arrangements across a wide range of settings, including:

• Independent health providers
• Residential and nursing care
• Supported living placements
• Home care packages
• Tenancy-based and community care arrangements

Many of the cases we advise on involve restrictive or intrusive interventions that require careful legal justification. This includes the use of CCTV and other monitoring arrangements, physical, mechanical or chemical restraint, seclusion or supervision arrangements, searches of person or property, and the management of social, familial or intimate relationships.

We provide clear, practical advice to ensure these arrangements are lawful, proportionate and properly evidenced.

Best interests decision-making and disputes

Where someone lacks mental capacity, decisions need to be made in their best interests. We support organisations to embed clear, practical approaches to mental capacity across both policy and frontline practice, ensuring care teams understand how to apply the law in real situations. This gives providers confidence that day-to-day decisions are being made consistently, appropriately and in full compliance with legal requirements.

Where disputes arise between professionals and between family members themselves, we are highly experienced in resolving these situations. We help organisations:

• Provide clear, defensible decision-making frameworks
• Identify when disagreements can be resolved without escalation
• Advise when court involvement is necessary

Deprivation of liberty and mental health law

Deprivation of liberty is a highly technical and fast-evolving area, with significant legal and regulatory consequences for non-compliance. We advise on:

• Deprivation of Liberty Safeguards (DoLS)
• Community deprivation of liberty and Court of Protection authorisation
• Detention and treatment under the Mental Health Act 1983
• The overlap and interface between the Mental Health Act and the Mental Capacity Act
• Transition to the Liberty Protection Safeguards framework

Our expertise at the intersection of these regimes ensures your organisation applies the correct legal framework in complex, high-risk situations. We provide practical, outcome-focused support across the full range of mental capacity issues. This includes supporting consistent, lawful best interest decision-making and resolving disagreements, assessing whether Court of Protection applications are required and supporting organisations through their engagement with the court.

We advise on the lawful use of restrictive practices, provide template documentation and guidance, manage legal and regulatory risk, and deliver tailored training and governance frameworks to ensure your organisation has the tools, confidence and legal backing to act decisively and compliantly when it matters most.