Every year, tens of thousands of vulnerable adults, elderly people with dementia, individuals with learning disabilities, psychiatric patients are subject to care decisions under the UK’s Mental Capacity Act 2005 (MCA). The Act was designed as a safeguard: to ensure their rights, to assess whether they can make decisions, and to limit the use of coercion. But a growing body of evidence suggests that many Local Authorities and NHS trusts are failing at that mission. Rather than protecting autonomy, systems designed to shield people from abuse may be enabling institutional convenience.

A System Under Pressure

According to the Care Quality Commission (CQC), the system overseeing deprivation of liberty is creaking. Their 2023–24 report on DoLS (Deprivation of Liberty Safeguards) found that many supervisory bodies are “significantly under-resourced.” Some local authorities told CQC they lack enough assessors and cannot keep pace with soaring demand. Care Quality Commission

One local authority said they would “be doing this for around 18 months just to clear” their backlog if no new applications came in. Care Quality Commission

The problem: only 19 % of DoLS applications are completed within the legal limit of 21 days; many people wait between 12–18 months. Local Government Lawyer+2Care Quality Commission+2

Resource-constrained councils cite staffing shortages and rising caseloads as the key drivers. Local Government Lawyer

This is not a quirk – it’s systemic. SCIE (the Social Care Institute for Excellence) analysis shows 67% of local authorities assessed by the CQC still “require improvement” in their DoLS arrangements. Local Government Lawyer

When Safeguards Are Delayed, Rights Are Denied

The delays are not harmless. In some cases, people who should have formal protections under the MCA are left in legal limbo. The Local Government & Social Care Ombudsman (LGSCO) has repeatedly raised red flags:

In a high-profile case, Surrey County Council had 5,700 outstanding DoLS requests as of 31 March 2022. Bond Solon

The average time to complete an assessment in that area was 345 days, more than double the national average of 154 days. Bond Solon

The Ombudsman found that Surrey appeared to rely on an “ADASS screening tool” to prioritise, but in so doing, “were not following the legal criteria contained in the Mental Capacity Act … around time frames.” Bond Solon

In another case, Southampton City Council was criticized for its high numbers of outstanding MCA assessments and DoLS applications (382 and 404 respectively), and for delaying assessments so long that people were restricted without the legal protections they ought to have. Local Government Lawyer

Misunderstanding, Misapplication, and Mis-training

Many of the problems stem not only from resource scarcity, but from widespread misunderstanding of the MCA among professionals:

Poor Understanding by Providers

In its 2022–23 monitoring report, CQC found that some providers did not properly implement the conditions of DoLS authorisations (e.g., access to places of worship or visits), meaning the restrictions imposed might not actually reflect the person’s best interests. Care Quality Commission There was also “poor recording of mental capacity assessments.” Care Quality Commission

In some mental health settings, CQC observed that staff did not clearly understand the interface between the MCA and the Mental Health Act, leading to poor decisions about which framework to use. Care Quality Commission

Lack of Training & Governance

According to a CQC report from 2013, care staff often misunderstood even the basics of the MCA, restraint was not always recorded or considered properly, and “best interests” decisions were sometimes poorly documented. Care Quality Commission

The same report noted that, in some services, there was little attempt to maximise a person’s capacity before resorting to restrictions. Care Quality Commission

Mental Capacity Law and Policy (a specialist commentary) analysed 139 “Notices of Proposal” from 2023–24 (when new providers were registering) and found that 66 related explicitly to noncompliance with the MCA. Mental Capacity Law and Policy

Institutional Incentives Over Individuals’ Best Interests

Beyond lack of training, some systemic incentives risk tilting decisions in favour of institutions rather than individuals:

The Social Care Institute for Excellence (SCIE) argues that resource pressures are pushing councils toward “triage approaches”: using screening tools to prioritise some cases, leaving others in backlog indefinitely. Local Government Lawyer

CQC’s State of Care report observed a “wide variation” in how different local authorities manage applications, with some applying blanket restrictions to all residents, even when less restrictive options might suffice—raising the question of whether these measures are more about institutional convenience than individual rights. Community Care

In its analysis, CQC also noted a “misconception among some providers that a DoLS application equated to an authorisation being in place.” In other words, some staff may believe applying for DoLS is enough, without fully thinking through what restraints should or should not be authorised. Community Care

Consequences for People

The human cost is considerable. The Health & Care Professionals Alliance (HCPA) published a report, The Right to Decide, collating investigations by the Ombudsman:

One person was removed from their family home in the dead of night without prior notice, without formal capacity assessments. HCPA

Another was moved 15 miles away to a care home, but no adequate best-interests process had been documented; friends and family felt cut out of decision-making. HCPA

In a third case, the complaint upheld by the Ombudsman noted that organizations had failed to collaborate and ensure the person received the care they actually needed, rather than what was convenient. HCPA

Over one year (2016–17), the Ombudsman estimated that up to 20% of adult social care complaints they investigated concerned capacity or DoLS; 69% of those cases were upheld, indicating systemic failure. HCPA

Judicial and Legal Alarm Bells

Legal scrutiny has also exposed deeper problems in how capacity assessments are carried out:

A recent Mental Capacity Report (March 2025) highlighted how local authority assessments sometimes rely on “unstructured” or flawed capacity-assessment forms that fail to align with the statutory framework of the MCA. Judges have pointed out the need for assessments to be “evidence-based, person-centred … not made to depend … upon the identification of a so-called unwise outcome.” Mental Capacity Law and Policy

The report also emphasizes the mental/clinical versus legal distinction: “insight is a clinical concept, whereas decision-making capacity is a legal concept.” When that line is blurred, local authorities risk wrongly judging people to lack capacity. Mental Capacity Law and Policy

Reform on the Horizon – But Progress Is Slow

The system’s flaws are well known, and reform has been promised for years. The Law Commission criticized the existing DoLS framework as a “bureaucratic nightmare” back in 2017, estimating that thousands were being held without proper authorisation. The Guardian Reform is due via the Liberty Protection Safeguards (LPS), but even the transition has collided with delays, confusion, resource constraints, and lack of clarity among commissioning bodies. Care Quality Commission+1

Why This Looks Like “Misuse”

All this is not necessarily sinister. It may not always be malicious. But the patterns suggest that institutional pressure (caseload, funding) is influencing how the MCA is applied.

“Backlogs” are used to justify delayed or reduced protections, potentially depriving people of their legal rights.

Poor understanding of the law among providers and assessors means that deprivation of liberty sometimes happens without rigorous, lawful assessment.

Some providers treat DoLS applications as a “box tick” rather than a serious, rights-based safeguard.

There is little consistency in how authorities prioritise or justify cases, raising questions about equity and accountability.

In short: the system designed to protect autonomy may be bending to convenience.

Voices of Concern

Advocacy groups and legal commentators argue that the very architecture of DoLS makes it vulnerable to misuse.

Families bereft of influence after capacity decisions feel marginalised.

The CQC has repeatedly warned of human rights risks, urging “urgent reform” to ensure people do not remain indefinitely in restrictive settings without proper legal safeguards. Community Care

What Needs to Change

From the evidence, three priorities emerge:

Local authorities desperately need more staff trained in MCA assessments, best-interests decision-making, and authorising deprivations of liberty.

Providers must deepen their understanding of not just how to assess capacity, but why; training must embed respect for autonomy, not just risk management.

There should be clearer mechanisms to hold councils and trusts accountable when they fail or delay assessments, including robust advocacy for individuals and families, and accessible appeals.

The Mental Capacity Act 2005 was meant to be a guardian of dignity, choice and protection. But in too many cases, it is being stretched—by overwork, underfunding, misunderstanding, and institutional inertia—into something else: a tool that limits liberty under the guise of safeguarding. The neglect may not always be malicious, but the effect is often the same: vulnerable people left waiting, unheard, and powerless.

Unless reform accelerates, the very safeguards meant to protect them may end up being the prison.

Locked In: How the Mental Capacity Act Is Being Bent

A 2023–25 Court of Protection Timeline

Since 2023, a steady stream of Court of Protection and family-court judgments, regulator reports and ombudsman decisions have drawn a picture of a system stretched to breaking. Chronic DoLS (Deprivation of Liberty Safeguards) backlogs, inconsistent legal reasoning about when someone is “deprived of liberty”, and repeated judicial reminders that local authorities and NHS bodies must follow the statutory safeguards.

The evidence does not usually show conspiratorial intent; it shows routine institutional pressure (backlogs, triage, lack of expertise) producing unlawful or inadequate use of the Mental Capacity Act 2005 (MCA). Below I trace the most important court decisions and official findings from 2023–2025 that illustrate how those failures translate into people losing rights and legal protections.

Quick summary of the headline evidence (short)

DoLS backlogs and missed statutory timeframes have been documented by the CQC and Ministry of Justice statistics, leaving many people without timely authorisations. Care Quality Commission+1

The Local Government & Social Care Ombudsman (LGSCO) has upheld complaints where councils failed to assess DoLS requests within legal timeframes, finding people “wrongfully deprived” or left restricted without proper authorisation. Local Government Lawyer+1

Court of Protection judgments in 2023–2025 illustrate recurrent themes: disputes about whether an intervention amounts to a deprivation of liberty, whether the Mental Health Act or MCA should apply, and whether authorisations or court orders were achieved lawfully and with proper best-interests reasoning. Mental Health Law Online+2Court of Protection Hub+2

Timeline: key court decisions, regulator findings and turning points (2023–2025)

2023 Rising Court workloads; judicial scrutiny of care plans

Jan–Jun 2023 Lancashire & South Cumbria NHS Foundation Trust v AH [2023] EWCOP 1

HHJ Burrows considered whether a proposed placement and care regime for AH involved a deprivation of liberty, and emphasised the need for careful, evidence-based assessment of whether restrictions go beyond what is necessary and lawful; the judgment shows how complex clinical/risk decisions become legal disputes requiring judicial oversight when the boundaries between care and confinement are blurred. Mental Health Law Online

May 2023, Manchester University Hospitals NHS Foundation Trust & JS [2023] EWCOP 12 A judgment explored the expiry of a Mental Health Act authority and the resulting question whether a person then lacked lawful authorisation and therefore was being deprived of liberty under the MCA. The case emphasises the fragile interface between the Mental Health Act and the MCA and how administrative lapses can convert clinical placements into unlawful deprivations. Court of Protection Hub

Mid-2023, Surge in Court of Protection workload and DoLS applications Commentators and the National Deprivation of Liberty Court reported rising numbers of applications — Courts were seeing more DoL applications and challenges, creating delay and pressure on judicial lists. These workload pressures mirror the operational backlogs being reported by authorities. Community Care+1

2024. Backlogs, legal uncertainty and children’s cases

Early–Mid 2024. Court decisions emphasise rigor of capacity reasoning Judges continued to insist capacity and best-interests assessments be person-centred and evidence-based; some hearings were listed (or refused on paper authorisation) because the court would not rubber-stamp restrictions in the absence of robust reasoning. The “failed to authorise on the papers” approach demonstrates judicial unwillingness to accept weak or incomplete local authority evidence. openjusticecourtofprotection.org

Mid–2024. Record Court activity and a spike in challenges. Ministry of Justice and reporting bodies recorded sharp rises in DoL/Court of Protection activity (for example, large increases in challenges and applications in early-2024), feeding a public debate that some deprivation orders are being used as a cheaper, quicker option than community care packages. Campaigners argued the rise signalled an institutional shift towards authorising restrictions rather than funding viable community alternatives. The Guardian+1

2024 Children’s deprivation-of-liberty jurisprudence. The family and High Court continued to revisit whether parental/local-authority consent can lawfully authorise confinement of children (cases flowing from Lincolnshire CC v TGA (2022) and related 2024 hearings). These decisions underscore how confusion about who can legally “consent” to restrictions risks inappropriate or unreviewed confinements for young people. (The Court of Appeal would then revisit these issues in 2025.) 39 Essex Chambers+1

2025 Consolidation, pushback and appellate refinement

Jan–Apr 2025. Continued judicial clarification (Re V (Profound Disabilities) and related High Court judgments)

High Court judgments in 2025 examined the fine line between care that meets profound needs and state action amounting to deprivation of liberty, finding in some instances that severe disability (and incapacity to leave) meant there was no Article 5 deprivation because the person could not, physically, assert liberty in the ordinary sense. These nuanced rulings highlight inconsistency in outcomes across jurisdictions and how factual differences produce different legal results, which in turn creates inconsistent practice by local authorities. Mental Health Law Online+1

2024–2025. Ongoing CQC warnings and statistical picture CQC’s State of Care reporting for 2023–24 documented that only 19% of standard DoLS applications were processed within the statutory 21-day window and that over 120,000 people were awaiting authorisation at March 2024, a scale of backlog that the regulator described as a human-rights risk. The chronic backlogs and the use of risk-based triage were repeatedly flagged as drivers of unlawful or delayed authorisations. Care Quality Commission+1

April 2025. Court of Appeal revisits limits on local authority consent for children (J v Bath & NE Somerset Council & Ors [2025] EWCA Civ 478). The Court of Appeal corrected earlier Family Division reasoning and clarified that local authorities cannot simply “consent” to confinement for children in their care in the same way parents can, a ruling that tightened a prior area of legal uncertainty and reduced scope for local authorities to rely on loose consent arguments. This is an example of appellate courts pushing back where local practice had expanded the boundaries of lawful restriction. Mental Capacity Law and Policy

Representative examples where court/regulator findings show misuse (or unlawful application) of the MCA

Administrative or procedural failures that created unlawful deprivations. The Manchester University Hospitals case shows how expiry of an appropriate authorising power can leave a person without lawful authorisation; judges have been alert to gaps where no lawful regime was in place but the person remained restricted. Court of Protection Hub

Prioritisation/triage and backlog decisions producing restrictive outcomes without timely authorisation. CQC statistics and Ombudsman decisions (e.g., Surrey County Council LGSCO findings) document councils using screening tools and prioritisation, resulting in very long waits for DoLS assessments and people effectively restricted without legal protections. Care Quality Commission+1

Confusion at the MHA–MCA interface and inappropriate use of one regime to avoid another. Judgments have repeatedly had to untangle whether the Mental Health Act or the MCA should apply; errors or delays in determining the correct legal framework have led to contested deprivations of liberty that end up in court. Court of Protection Hub+1

Use of the inherent jurisdiction/family court in place of clearer statutory routes. In children’s cases, family courts’ use of parental consent or inherent jurisdiction to authorise confinement has provoked appellate correction (2024–25) because the practice risked leaving children without the specific statutory safeguards intended by the DoLS/LPS frameworks. 39 Essex Chambers+1

What the cases show about why misuse (or inadequate use) happens

Pulling the cases and reports together shows repeated causal drivers:

Capacity and DoLS workloads are outpacing resources. Authorities adopt risk-based triage and screening tools (documented by CQC and LGSCO). Care Quality Commission+1

Knowledge gaps and weak record-keeping. Courts regularly call for evidence-based, person-centred capacity assessments and find records are often inadequate. Mental Capacity Law and Policy

Legal uncertainty (children, the MHA–MCA interface, what constitutes “state responsibility”) leads to inconsistent practice; judges correct the approach but only after rights have been restricted. 39 Essex Chambers+1

Case snapshots (short, cited extracts you can follow up)

Lancashire & South Cumbria NHS Foundation Trust & Lancashire CC & AH [2023] EWCOP 1. HHJ Burrows authorises measures but stresses careful scrutiny of deprivation questions. (See mentalhealthlaw and Court of Protection Hub summaries.) Mental Health Law Online+1

Manchester University Hospitals NHS Foundation Trust & JS [2023] EWCOP 12. Judge found that once the MH Act authority expired, the person’s continuing restrictions triggered deprivation-of-liberty questions under the MCA. (Lesson: administrative lapse -> legal problem.) Court of Protection Hub

Stockport MBC v KB [2023] EWCOP 58 (reported analysis). Judicial analysis of community DoL applications and the kinds of medical evidence required (illustrates the court responding to poor or inconsistent local authority practice). Local Government Lawyer

Series of family/care cases on children (2022–2025). Lincolnshire CC v TGA (2022) spawned follow-on litigation and appellate correction in 2025; the arc shows local authorities and courts grappling with who may lawfully authorise confinement of children in their care. 39 Essex Chambers+1

Regulatory & statistical evidence. CQC: chronic DoLS backlogs and only 19% applications met statutory timescales (2023–24). LGSCO: formal findings that councils’ delays led to unlawful restriction in named investigations (e.g., Surrey). Ministry of Justice / court statistics: rising DoL applications and court challenges in 2024. Care Quality Commission+2Local Government Ombudsman+2

What this means for people and families (real effects shown in cases)

People have been left restricted for months without a lawful authorisation; families have been excluded from decision-making or told the only option is placement. Ombudsman and court reports give concrete examples of people moved long distances or denied contact because an adequate best-interests process was not carried out. Local Government Ombudsman+1

Conclusion — legal fixes are occurring, but slowly

Between 2023 and 2025 the courts have repeatedly had to step in to correct, fine-tune and sometimes rebuke local practice. The evidence is consistent: misuse is often not a deliberate plot but the predictable consequence of under-resourcing, inadequate training, inconsistent legal reasoning and the temptation to use deprivation orders as administratively convenient substitutes for proper social care packages. Appellate authorities (and the CQC/LGSCO) have pushed back, but only partly: operational backlogs and resource constraints mean the same problems recur across jurisdictions.

Hidden in Plain Sight: The Secrecy and Power of the Office of the Public Guardian

The role of the Office of the Public Guardian (OPG) in England and Wales is, on paper, laudable. Tasked under the Mental Capacity Act 2005 with protecting some of society’s most vulnerable, the mentally incapacitated, those with severe illness or debilitation, its remit should command public trust. 

Yet for many families caught in its orbit, the reality has been something quite different: an opaque system, court-enforced gagging orders, accusations of wrongdoing levelled at innocent relatives, and little meaningful public scrutiny.

Secrecy by Default

The Court of Protection (CoP), which often works in tandem with the OPG when deputies are appointed or decisions made about capacity, remains shrouded in confidentiality. The legal framework makes it a contempt of court to publish a judgment unless the judge gives permission. As one commentary observed:

“We are finding that a significant minority of Transparency Orders prohibit identification of public bodies … for no apparent reason.” 

Practically speaking, this means families may find themselves accused of wrongdoing (or coerced into quiet settlement) while the processes, evidence and reasoning remain entirely hidden from view.

Worse still, these orders can apply to public bodies such as the OPG itself, insulating its decision-making from public scrutiny. 

Innocent Relatives Cast as Perpetrators

At the heart of the concern is that relatives, often the person closest to the vulnerable individual and already facing huge financial and emotional burdens are suspected, investigated or side-lined with minimal transparency. While specific names and dates are understandably anonymised, the patterns are evident:

Families recount being labelled as “concerned with their own interests” by the OPG or Court, despite no credible evidence of abuse.

The stress on relatives is profound. One family’s voice:

“We are all receiving medical help for the stress … it’s not stress due to my father’s illness – but due to all of this!” 

Although I could not locate a publicly-reported case in which a relative was definitively found innocent yet publicly cleared (owing to anonymity orders), the fact that the narrative of “accused relative” can proceed behind closed doors is deeply troubling. The system allows for a relative to be treated as a suspect, with the game largely hidden from view.

The Power Imbalance: Vulnerable Person vs State Apparatus

The vulnerable individual is meant to be the system’s focus. Yet the apparatus—OPG investigations, deputies, Court proceedings—can shift the locus of control away from the person and their trusted circle into a framework where state-appointed officials and judicial fiat dominate.

Some commentators argue the Court of Protection “institutionalises inequality … allows untested and hearsay evidence, restricts participation and disclosure” and thus risks breaching fair-trial standards. 

When trust and cooperation of relatives is replaced by suspicion and exclusion, the very aim of safeguarding may be undermined. Families describe how they are “never told what the goal-posts are”, “constantly moved on”, and prevented from simply being a family with their loved one. 

When the “Protector” Becomes the Gatekeeper

The OPG’s formal account of its investigative powers states that although around 2,800 investigations may be opened each year, “in most cases we find that there is no case to answer”. 

Yet this doesn’t mitigate the impact on those lives on which such investigations are launched. The act of being under investigation, being treated as a potential perpetrator, often sealed behind ‘confidentiality’, can itself be destructive: emotionally, financially and socially.

The official complaints procedure of the OPG emphasises responsiveness—aiming to reply within 10 working days, offering apologies and redress for proven mistakes.  But that only works after the damage is done. The system does little to ensuretransparency before or during the process which has the potential to pulverise a family’s trust and life.

Why It Matters

Transparency is not optional when the state effectively takes over personal decision-making, finances and care of those lacking capacity. Without clear oversight, power becomes unaccountable.

Relatives must not be collateral damage in protection systems. When a relative is treated as suspect, the family unit is fractured, and the very support the vulnerable person needs is compromised.

Public confidence in the guardianship framework demands more than good outcomes: it demands visible, understandable, and fair processes. The current veil of secrecy undermines deeper trust.

What Could Change

Defaults to openness: The CoP should adopt publication of hearings or summaries by default unless there is a compelling privacy reason—not the other way around.

Independent oversight: A body independent from the OPG should audit cases where relatives were investigated but cleared, ensuring learning and accountability.

Clearer pathways for families: When families are told they are “being investigated”, they should have the right to know the allegations, the evidence, and to respond—rather than being passive subjects.

Redress for families harmed by process: If a relative has been wrongly treated as a perpetrator, there should be accessible mechanisms for apology, compensation and restoration of name.

In Conclusion

The Office of the Public Guardian was established to protect those who cannot protect themselves. Yet somewhere along the way, the balance of power has shifted. Instead of championing the rights of the vulnerable, the system risks treating their trusted relatives as adversaries and cloaking its actions in near-total secrecy.

For a democracy that values dignity, justice and openness, this cannot stand. The very people who ought to be protected—the most vulnerable—deserve more than a system that operates behind locked doors. Families deserve more than the fear of being branded perpetrators without ever seeing the case against them.

The guardianship framework must be reformed not just in form but in spirit. And the public, including those whose voices are quieted by gagging orders must hold it to account.