The Mental Capacity Act 2005 is a law that protects your rights if you become unable to make decisions for yourself. Within the Act there are a set of rules that apply if you do not have the capacity to make decisions about your care - these are the Deprivation of Liberty Safeguards (DoLS).
Mental Capacity Act 2005
The Mental Capacity Act deals with the assessment of a person's capacity and acts by carers of those who lack capacity. The Act applies to all people aged 16 years and over, in England and Wales.
Examples of people who may lack capacity include people with:
- Learning disabilities
- Mental health conditions
- Brain injury
- Substance or alcohol misuse
Section 2 of the Mental Capacity Act states:
a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”.
It is noted that impairment or disturbance does not have to be permanent in nature for the Mental Capacity Act (2005) to be applicable, it could also be short term meaning your ability to make decisions changes day to day.
The Act is a law to enable and support people who lack capacity to make particular decisions, but also to maximise their ability to make decisions, or participate in decision making as far as they are able to.
The five core principles are:
- A person is assumed to have capacity. A lack of capacity has to be clearly determined.
- No-one should be treated as unable to make a decision unless all reasonable steps to help them have been exhausted.
- A person can make an unwise decision which does not necessarily mean they lack capacity.
- If a person lacks capacity then any decision taken on their behalf must be in their best interests.
- Any decision taken on behalf of a person lacking capacity must take into account their rights and freedom of action and should show that the least restrictive option for intervention is achieved.
Deprivation of Liberty Safeguards
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 a person of their liberty, to provide the individual with the care and support they are assessed as needing. Hospitals and Care homes then apply to the Local Authority, Dudley Adult Social Care, who arrange for independent assessments to ensure the deprivation of liberty is in the person’s best interests.
In summary, the safeguards ensure:
- that the arrangements are in the person’s best interest and necessary and proportionate to the likelihood of harm
- the person has 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.
The Supreme Court decision 2014 have determined that a deprivation of liberty occurs when:
- a person is under continuous supervision and control 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 each individuals 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. The independent DoLS assessments ensure the care and restrictions are looked at in depth and the individual is provided with the necessary safeguards.
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