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MCA and DoLs

Mental Capacity Act 2005

The Mental Capacity Act (MCA) is designed to protect and empower individuals who may lack the mental capacity to make their own decisions about their care and treatment. It is a law that applies to individuals aged 16 and over.

Examples of people who may lack capacity include those with: 

However, just because a person has one of these conditions does not necessarily mean they lack the capacity to make a specific decision. 

Someone can lack capacity to make some decisions (for example, to decide on complex financial issues) but still have the capacity to make other decisions (for example, to decide what items to buy at the local shop).

The MCA says:

  • Everyone has the right to make his or her own decisions. Health and care professionals should always assume an individual has the capacity to make a decision themselves, unless it is proved otherwise through a capacity assessment.
  • Individuals must be given help to make a decision themselves. This might include, for example, providing the person with information in a format that is easier for them to understand.
  • Just because someone makes what those caring for them consider to be an "unwise" decision, they should not be treated as lacking the capacity to make that decision. Everyone has the right to make their own life choices, where they have the capacity to do so.
  • Where someone is judged not to have the capacity to make a specific decision (following a capacity assessment), that decision can be taken for them, but it must be in their best interests.
  • Treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms possible, while still providing the required treatment and care.

The MCA also allows people to express their preferences for care and treatment in case they lack capacity to make these decisions. It also allows them to appoint a trusted person to make a decision on their behalf should they lack capacity in the future.

People should also be provided with an independent advocate who will support them to make decisions in certain situations, such as serious treatment or where the individual might have significant restrictions placed on their freedom and rights in their best interests.

Follow the links for further reading:

Social Care Institute for Excellence (SCIE) - MCA directory

Mental Capacity Act 2005 - Valuing every voice, respecting every right: One Year On   

Mental Capacity Act summary

Deprivation of Liberty Safeguards

What is a deprivation of liberty?

A Supreme Court judgement in March 2014 made reference to the 'acid test' to see whether a person is being deprived of their liberty, which consisted of two questions:

  1. Is the person subject to continuous supervision and control?  and
  2. Is the person free to leave? – with the focus being not on whether a person seems to be wanting to leave, but on how those who support them would react if they did want to leave.

If someone is subject to that level of supervision, and is not free to leave, then it is likely that they are being deprived of their liberty. But even with the 'acid test' it can be difficult to be clear when the use of restrictions and restraint in someone's support crosses the line to depriving a person of their liberty. Each case must be considered on its own merits, but in addition to the two 'acid test' questions, if the following features are present, it would make sense to consider a deprivation of liberty application:

  • frequent use of sedation/medication to control behaviour
  • regular use of physical restraint to control behaviour
  • the person concerned objects verbally or physically to the restriction and/or restraint
  • objections from family and/or friends to the restriction or restraint
  • the person is confined to a particular part of the establishment in which they are being cared for
  • the placement is potentially unstable
  • possible challenge to the restriction and restraint being proposed to the Court of Protection or the Ombudsman, or a letter of complaint or a solicitor’s letter
  • the person is already subject to a deprivation of liberty authorisation which is about to expire.

How is Deprivation of Liberty authorised under DoLS?

The Deprivation of Liberty Safeguards (DoLS) can only apply to people who are in a care home or hospital. This includes where there are plans to move a person to a care home or hospital where they may be deprived of their liberty. The care home or hospital is called the managing authority in the Deprivation of Liberty Safeguards.

Where a managing authority thinks it needs to deprive someone of their liberty they have to ask for this to be authorised by a supervisory body. They can do this up to 28 days in advance of when they plan to deprive the person of their liberty.

For care homes and hospitals the supervisory body is the local authority where the person is ordinarily resident. Usually this will be the local authority where the care home is located unless the person is funded by a different local authority.

The managing authority must fill out a form requesting a standard authorisation. This is sent to the supervisory body which has to decide within 21 days whether the person can be deprived of their liberty.

The supervisory body appoints assessors to see if the conditions are met to allow the person to be deprived of their liberty under the safeguards. They include:

  • The person is 18 or over (different safeguards apply for children)
  • The person is suffering from a mental disorder
  • The person lacks capacity to decide for themselves about the restrictions which are proposed so they can receive the necessary care and treatment
  • The restrictions would deprive the person of their liberty
  • The proposed restrictions would be in the person’s best interests
  • Whether the person should instead be considered for detention under the Mental Health Act
  • There is no valid advance decision to refuse treatment or support that would be overridden by any DoLS process.

 

Follow the links for further reading:

Social Care Institute for Excellence (SCIE) - At a glance 43: The Deprivation of Liberty Safeguards

Social Care Institute for Excellence (SCIE) - Deprivation of Liberty Safeguards