The Mental Capacity Act 2005 is an Act of Parliament of the United Kingdom applying to England and Wales. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of people who lack the capacity to make particular decisions for themselves and applies to people aged 16 and over.
The Act clarifies:
The Mental Capacity Code of Practice provides guidance to professionals and paid carers who have a legal duty to adhere to the Code and to unpaid carers.
Mental capacity is the ability to make our own decisions at any given time. A lack of mental capacity could be due to a permanent or temporary reason, for example:
But, just because a person has one of these health conditions doesn’t necessarily mean they lack the capacity to make a specific decision.
There are two stages in the test of capacity:
Stage one is the diagnostic test:
Is there an impairment of, or disturbance in, the functioning of the the person`s mind or brain and is that impairment or disturbance sufficient to cause the person to be unable to make that particular decision. This can be a confirmed diagnosis or signs and symptoms to indicate a diagnosis. Examples of an impairment or disturbance include: Brain Injury, Dementia, Physical or Medical conditions that cause confusion, drowsiness, or loss of consciousness etc. Furthermore, it must be seen whether the impairment or disturbance is of a temporary or permanent nature. But just because a person has one of these health conditions does not necessarily mean they lack the capacity to make a specific decision.
Stage two is the four step functional test:
The second test known as the ‘functional test is linked to the first test. When it becomes apparent that the person is suffering from impairment, at this stage it is determined whether or not that impairment has stopped the person from making a decision at a specific time. This is a functional test focusing on how the decision is made, rather than the outcome or the consequence of the decision.
Can the person:
Failing one of the steps means lack of capacity to make that decision at that time. If someone lacks capacity, a decision can be made in their best interests (with some exclusions).
First, check is there a substitute decision maker e.g. LPA, deputy or advance decision to refuse treatment. Best interest checklist includes:
The deprivation of liberty safeguards are part of the Mental Capacity Act 2005.
Sometimes people in hospitals and care homes cannot make their own decision about their care or treatment. They need extra protections to make sure they are not harmed. There are cases where the care arrangements are restrictive to the point that someone is deprived of their liberty.
The Supreme Court in 2014 determined that a deprivation of liberty occurs when:
Local authorities are responsible for authorisations of DoLS in care homes and hospitals.
For people in supported living, at home or somewhere other than care homes or hospitals a deprivation of liberty will need to be authorised by the Court of Protection. For North East London Integrated Care Board (ICB) continuing health care funded clients, it is the ICB’s responsibility to submit applications to the Court of Protection for authorisation of Deprivation of Liberty.
Although restrictions may be in place to keep the person safe from harm, they should be proportionate to the risk posed. Examples of restrictions are:
There may be other restrictions in place depending on the individual’s needs. This must be judged on a case-by-case basis.
The following requirements need to be met:
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