Mental Capacity Act and Deprivation of Liberty Safeguards
The Mental Capacity Act 2005 and Deprivation of Liberty Safeguards are key pieces of legislation which should be considered within all aspects of Adults Safeguarding work. Professionals working with those with care and support needs should ensure they understand local policies and procedures.
What is the Mental Capacity Act?
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:
- a severe learning disability
- a brain injury
- a mental health condition
- a stroke
- unconsciousness caused by an anaesthetic or sudden accident
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).
For further information and guidance please visit any of the information sites listed below;
A very good page that has access to numerous resources, including MCA online training and discussions relating to practice. There is guidance on undertaking capacity assessments and making best interest decisions.
The Small Places
Managed by Dr Lucy Series. She discusses the MCA. You can sign up to the blog.
Put together by Inspector Mike Brown of West Midlands Police. It is aimed at police officers dealing with mental health and mental capacity issues. You can sign up to an update. It reports on details of cases in England and Ireland.
British and Irish Legal Information Institute (BAILII)
Peter produces a newsletter that you can sign up to. It is produced on an occasional basis.
What are Deprivation of Liberty Safeguards (DoLS)
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 a person of their liberty, in order to provide a particular care plan. It is then the role of the Local Authority Social Care to arrange for assessments to ensure the deprivation of liberty is in the person’s best interests.
In summary, the safeguards ensures:
- that the arrangements are in the person’s best interest
- the person is appointed someone to represent them
- the person is given a legal right of appeal over the arrangements
- the arrangements are reviewed and continue for no longer than necessary.
A recent court decision determined that a deprivation of liberty occurs when:
- a person is under continuous supervision and control in a care home or hospital, and
- is not free to leave, and
- the person lacks capacity to consent to these arrangements.
Whether someone is deprived of their liberty depends on the person’s specific circumstances. A large restriction may sometimes in itself be a deprivation of liberty or sometimes a number of small restrictions added together will amount to a deprivation of liberty. What needs to be assessed is the amount of control that the care home or hospital has over the person.
If you need to request a DoLS assessment or seek advice, please contact your Local Authority.