Mental Capacity & Deprivation of Liberty

Every day we make decisions about our lives. These decisions could be about simple things like what we eat and what we wear. They could also be about more major things like our health, our care and our finances. Our mental capacity affects how easily we are able to make such decisions. Some people may lack mental capacity to make certain decisions because they have:

  • a learning disability
  • dementia
  • a mental health problem
  • a brain injury or stroke.

Legislation

Mental Capacity Act 2005
The Mental Capacity Act 2005 provides the legal framework for acting for, and making decisions on behalf of, individuals who lack the mental capacity to make specific decisions for themselves.

The underlying philosophy of the Act is to ensure that any decision made, or action taken, on behalf of someone who lacks the capacity to make decision or act for themselves is made in their Best Interests.

Deprivation of Liberty (DoLS)
Depriving someone (18 or over) of their liberty is sometimes the only way to keep people safe and healthy. However, it should be avoided wherever possible, and must be done lawfully. The Mental Capacity Act Deprivation of Liberty Safeguards (MCA DoLS) provide protection for vulnerable people who are accommodated in hospitals or care homes in circumstances that amount to a deprivation of their liberty and who lack the capacity to consent to the care or treatment they need.

The Mental Capacity Act (MCA) confirms in legislation that it should be assumed that an adult (aged 16 or over) has full legal capacity to make decisions for themselves (the right to autonomy) unless it can be shown that they lack capacity to make a decision for themselves at the time the decision needs to be made.

The Act also states that people must be given all appropriate help and support to enable them to make their own decisions or to maximise their participation in any decision making process.

There are five ‘statutory principles’ – the values that underpin the legal requirements in the Act:

  1. A person must be assumed to have capacity unless it is established that they lack capacity.
  2. A person is not to be treated as unable to make a decision unless all the practicable steps to help his to do so have been taken without success.
  3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
  4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
  5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
The Deprivation of Liberty Safeguards (DoLS) are part of the Mental Capacity Act 2005. The safeguards aim to make sure that people in care homes and hospitals are looked after in a way that does not inappropriately restrict their freedom.

The safeguards set out a process that hospitals and care homes must follow if they believe it is in the person’s best interests to deprive them of their liberty, in order to provide a particular care plan. It is then the role of Manchester Adult Social Care to arrange for assessments to ensure the deprivation of liberty is in the person’s best interests.

The DoLS provides that deprivation of liberty:

  • should be avoided wherever possible;
  • should only be authorised in cases where it is in the relevant person’s best interests and the only way to keep them safe;
  • should be for as short a time as possible; and
  • should be only for a particular treatment plan or course of action.

Deprivation of Liberty can also occur in a domestic setting. This can include Supported Housing schemes, Shared Lives services and Post-18 residential colleges.

The ‘acid test’ for whether ANY arrangement (care homes, hospitals or domestic settings) amount to a deprivation of liberty is as follows:

  • Is the individual subject to continuous supervision and control; and
  • Is the individual NOT free to leave the placement; and
  • Is the individual unable to consent to such arrangements?

If the answer to all of the above questions is ‘Yes’, then the person is deprived of their liberty and authorisation must be sought either via the DoLS Safeguards or via Court of Protection.

A deprivation of liberty that does not have the appropriate authorisation will be unlawful.

The presumption of capacity should be the underpinning ethos of the interactions between health, social care and public sector workers whenever they are required to interact and/or build relationships with any member of the public.

In some circumstances there may be concerns which lead staff across the full range of public service settings to work with individuals who may, for a whole host of reasons, be unable to decide for themselves. In these cases, staff need to understand, and apply, the framework of the Mental Capacity Act to their areas of responsibility, ensuring the individual’s rights in situations where someone needs additional support or safeguards to be put in place.

The National Mental Capacity Act Competency Framework can be downloaded from www.ncpqsw.com/national-mental-capacity-act-competency-framework

The Mental Capacity Act sets out a range of ways by which people can plan for a time when they are no longer able to make decisions for themselves.

A Lasting Power of Attorney (LPA) is a legal document that, in the event that a person later becomes unable to make certain decisions, lets a trusted person make these decisions on their behalf.

There are two different types of Lasting Power of Attorney (LPA):

  • A ‘Health and Welfare LPA’ allows a person to choose one or more people to make decisions about things such as medical treatment on their behalf.
  • A ‘Property and Financial Affairs LPA’ – allows a person to choose one or more people to make property and financial affairs decisions on their behalf.

The Mental Capacity Act also provides for Advanced Decisions  to Refuse Treatment (also known as Advanced Directives). This enables someone to plan ahead and refuse specified medical treatment in the future, for a time when they lack the mental capacity to consent or refuse that treatment.

A person may also make an Advanced Statement as to the treatment or care they would like to be given in the future if they should become unable to decide for themselves. This is not legally binding but will help others to understanding their wishes and preferences.
These measures can help people to plan for how their health, wellbeing and financial affairs will be looked after when they are no longer able to do this for themselves.

More information about Lasting Powers of Attorney, Advanced Decisions and Advanced Statements can be found  on the government website www.gov.uk/power-of-attorney and from Age UK on their website www.ageuk.org.uk and the Alzheimers Society website www.alzheimers.org.uk