The Social Care Institute for Excellence is not normally an alarmist body, which makes its recent (26 August 2025) statement on MCA reform all the more striking. I reproduce the material sections below:
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.
The Social Care Institute for Excellence’s (SCIE) new analysis of Care Quality Commission (CQC) assessments of local authorities, as of August 2025, reveals that:
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- 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.
As the Chief Executive, Kathryn Marsden OBE, notes:
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 therefore 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.
For my part, I am particularly glad to see that SCIE is asking for things to be thought across across the piece – and I would add to the piece also the changes that the Law Commission are proposing in relation to Wills which include (buried in the report) proposals for reforms to enable better support for decision-making, and a recasting of the MCA to place greater weight on the person’s wishes and feelings. Whilst the DoLS saga shows that simply having law in place is not a guarantee that rights protected by that law will actually be protected, having the right law in place is a crucial foundation.
