Mental Capacity Act and Deprivation of Liberty Safeguards

The Mental Capacity Act 2005

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 process for caring for someone who may, at some time, lack capacity
  • How decisions should be made for that person
  • When family, relatives or carers should be consulted about decisions being made for that person
  • How that person is protected when others are making decisions for them

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.

The five Key Principles are:

  1. A presumption of capacity
  2. The right for individuals to be supported to make their own decisions
  3. Individuals retain the right to make eccentric or unwise decisions
  4. All decisions should be made in the best interests of the individual
  5. Anything done on behalf of an individual without capacity should be done with the least restriction to their basic rights and freedom.

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:

  • dementia
  • a learning disability
  • a brain injury
  • a mental health illness
  • a stroke
  • unconsciousness caused by an anaesthetic or sudden accident.

But, just because a person has one of these health conditions doesn’t necessarily mean they lack the capacity to make a specific decision.

What is the test for assessing a person’s mental capacity?

There are two stages in the test of capacity:

  1. Diagnostic test
  2. Functional test

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:

  1. Understand the decision that needs to be made?
  2. Retain the information long enough to make the decision?
  3. Use/weigh up the information?
  4. Communicate their decision the way they would usually communicate?

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).

Best interest decisions

First, check is there a substitute decision maker e.g. LPA, deputy or advance decision to refuse treatment Best interest checklist includes:

  • Can the decision wait?
  • Involve the person.
  • Consult all relevant people.
  • Do not make any assumptions.
  • Consider past, present and future views

Deprivation of Liberty Safeguards (DoLS)

The Deprivation of Liberty Safeguards (DoLS) 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:

  • a person is under continuous supervision and control in a care home or hospital
  • is not free to leave
  • the person lacks capacity to consent to these arrangements

Local Authorities are responsible for authorisations of DoLS in Care Homes and Hospitals.

Deprivation of Liberty in a Community setting

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 NEL ICB CHC 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:

  • Care support / constant supervision
  • Lap belts in wheelchairs
  • Locked doors
  • No free access to medication or administration of medication that have a sedative effect.

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:

  • has the person got capacity to consent to remain there?
  • is the person under continuous supervision and control?
  • is the person not free to leave?
  • Are the restrictions in the person’s best interests?