Two decades ago now, the Mental Capacity Act 2005 (MCA) was introduced to protect and empower people in England and Wales who might struggle to make decisions for themselves. It laid out five key principles, including the right to be assumed capable unless proven otherwise, and the need to use the least restrictive option when acting on someone’s behalf.
Fast forward 20 years, and the impact of the MCA on supported housing, social care and health services is more visible than ever, but so are the gaps. While the law created a strong foundation, practice on the ground is still evolving (and sometimes struggling) to meet its standards.
From Blanket Assumptions to Nuanced Assessments
In the early days, it was common to see capacity assessments used as blanket judgments, especially when individuals had learning disabilities, dementia or complex mental health needs. That approach is no longer acceptable.
Today, there is a much stronger focus on decision-specific capacity. Someone may be able to decide what they want for lunch, but not where to live or how to manage their finances. Capacity can vary by time, setting and subject—and assessments need to reflect that complexity.
Recent guidance, such as the BMA Ethics Toolkit (2025), now emphasises supported decision-making, helping people make choices for themselves, rather than taking control away too quickly.
Liberty: A Hotspot of Legal Tension
One of the most contested areas under the MCA has been the deprivation of liberty. The Deprivation of Liberty Safeguards (DoLS) (meant to protect people who cannot consent to care which significantly restricts their freedom) have been overwhelmed. In 2023–24 alone, over 332,000 applications were made, far beyond the original expectations.
The system is overloaded, and reform is overdue. The Liberty Protection Safeguards (designed to replace DoLS with a more flexible, streamlined approach) are still in the wings, delayed but imminent.
The Courts Weigh In
Landmark cases have reshaped how we interpret “best interests” and human rights under the MCA. The Supreme Court’s decision in Aintree University Hospitals v James was clear: a person’s wishes, feelings and values must carry real weight, not just be noted and set aside.
At the same time, organisations such as SCIE and the NHS have developed more practical guidance to help providers navigate these expectations, especially in supported housing and community-based care.
Why This Matters for Supported Housing Providers
If you provide supported living or housing with care, the MCA is not just background law, it is a daily reality.
Many residents experience fluctuating or impaired capacity, and your housing model may involve arrangements which restrict liberty (such as locked doors, constant supervision or limits on movement). That means:
- Capacity assessments must be done properly: Generic checklists will not cut it. Assessments need to be timely, decision-specific and clearly documented.
- Liberty-restricting arrangements must be recognised and authorised: If you do not have the right legal cover (DoLS or LPS), you are exposed to risk.
- Records must be airtight: Capacity decisions, best interest processes and any restrictions must be logged and justified.
- You need systems which support less restrictive alternatives: Systems which reflect the shift toward supporting autonomy whenever possible.
- Compliance risk is growing: With delays in DoLS, rising scrutiny and a complex legal interface between capacity and mental health legislation, it is easy to fall behind.
The System Still Struggles and So Do Providers
Despite 20 years of the MCA, a systematic review of care home practice found that staff confidence is often low, training patchy and legal knowledge thin.
Even worse: most DoLS applications miss the legal deadlines. That is not just a compliance issue but a human rights risk.
Meanwhile, the government is considering changes to give families more power to request assessments, and is reviewing how the MCA fits with the Mental Health Act. The law is not static, and the future could bring more reform.
What Providers Can Do Now
To meet today’s expectations and prepare for what comes next, providers should:
- Assess capacity decision-by-decision, with clear rationale and evidence.
- Audit any restrictions in care and living arrangements and make sure authorisations are in place.
- Train staff properly, not just once but regularly, covering capacity law, best interests, liberty safeguards and supported decision-making.
- Track everything from assessments to incidents with clear, defensible records.
- Use your data smartly to spot trends (hotspots where capacity is often questioned or liberty restricted) and address them proactively.
How ECCO Helps
Navigating the MCA’s demands takes the right tools. That is where ECCO comes in.
ECCO’s platform is built for supported housing and care providers. It helps you:
- Embed decision-specific capacity assessments into each resident’s record, with full documentation.
- Flag and track restrictions of liberty, linking them to appropriate authorisation workflows.
- Maintain clear audit trails (who made the decision, when, on what basis) so you are always ready for inspection or review.
- Use dashboards and alerts to identify risks across units, spot delays and catch compliance gaps early.
Instead of juggling tenancy records, care notes and liberty safeguards in separate systems, ECCO brings it all together by cutting paperwork, reducing risk and helping your staff focus on residents, not red tape.
20 Years In, the Real Work Is Now
Of course, rights on paper only matter if they are lived in practice.
Supported housing providers are on the front lines of delivering on that promise. That means embracing the complexity, equipping staff, tightening systems and ensuring that every person’s rights, wishes and freedoms are at the heart of how support is delivered.
The law gave us the framework. Now it is up to us to make it real.