Failure to act on long-delayed reforms to the Mental Capacity Act is contributing to preventable deaths, unlawful detentions, and growing human rights concerns.
The Mental Capacity Act (MCA) is the legal foundation for decisions made on behalf of people who cannot decide for themselves, because of dementia, learning disability, brain injury or serious illness. It governs some of the most sensitive decisions in life: medical treatment, financial control, or the need for care.
Crucially, the MCA also governs when and how someone can be lawfully deprived of their liberty, such as when they are confined to a hospital or care home for their own safety. These safeguards, known as Deprivation of Liberty Safeguards (DoLS), are embedded in the MCA. If DoLS aren’t working, the MCA isn’t working.
The Government’s attempt to fix this, through the Mental Capacity (Amendment) Act 2019 and the introduction of Liberty Protection Safeguards (LPS), has stalled. Implementation was paused in 2020. Five years on, reform is frozen, yet demand is rising, and consequences are escalating.
SCIE’s new analysis of Care Quality Commission (CQC) assessments of local authorities, as of August 2025, reveals that:
· 67% of local authorities inspected were found to require improvements to their DoLS arrangements
· The most frequent issue raised in CQC inspections was failure to process deprivation of liberty requests lawfully or on time
· Local authorities themselves cited staffing shortages and rising demand as key drivers of the backlog
This is occurring against a backdrop of soaring requests, with over 332,000 DoLS applications made in 2023/24, a stark contrast to the original Government estimate of just 21,000 per year. In practice, only 19% of these are completed within the 21-day legal requirement, with significant numbers waiting between 12 and 18 months for completion.
Kathryn Marsden OBE, Chief Executive of the Social Care Institute for Excellence (SCIE), said:
“This new analysis paints a bleak picture; outdated guidance, overstretched councils, and legal uncertainty are resulting in unlawful detentions, avoidable deaths, and a system unable to meet demand.
“Every day, people are being deprived of their liberty without legal authority, often because the system to protect them is overwhelmed or misunderstood. This creates a profound risk of human rights breaches, particularly for people with learning disabilities, autism, dementia, or long-term mental health conditions.”
Recent legislative progress highlights how urgently MCA reform is needed.
The Mental Health Bill 2025 aims to stop adults with autism or a learning disability from being inappropriately detained under mental health law unless they also have a co-occurring mental illness. But many of these individuals will instead be placed under the DoLS system, a system already at breaking point. Without functioning MCA safeguards, these adults risk being transferred from one form of detention to another, without any legal protection or meaningful right of appeal.
Similarly, the proposed Terminally Ill Adults (End of Life) Bill relies on an individual being able to demonstrate clear and settled capacity in deciding to end their life. However, the MCA provides no adequate framework for assessing capacity in such decisions. Without reform, the law may enable choices it is not equipped to regulate safely.
Kathryn continues:
“The concern is that while other parts of the legal and policy framework are being modernised, such as the Mental Health Bill and potential assisted dying legislation, they are being built on a foundation that is crumbling.
“The Mental Capacity Act is the bedrock of these reforms. If that foundation is not functioning, then nothing built on it will be stable.
“Reform cannot wait for the long legislative cycles of government. While the full implementation of LPS may still be some way off, urgent action is needed to stabilise and improve the current system.
“With rising demand, mounting delays and legal ambiguity, continuing inaction will only deepen injustice and increase costs, both human and financial.”
SCIE is calling for:
· Renewed Government commitment to the Mental Capacity (Amendment) Act, with a roadmap for review and implementation
· Publication of updated Codes of Practice, which have not been revised since 2007, despite major legal developments
· Investment in workforce training, supervision and post-qualification development so professionals can confidently and lawfully apply the MCA
· Revisiting the core principles of the LPS model, enabling a more flexible, portable and person-centred approach to deprivation of liberty
· Strengthening of CQC inspections, so that failures in applying the MCA itself (not just DoLS backlog) are monitored and addressed
