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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 also a separate set of safeguards:

  • Deprivation of Liberty Safeguards (DoLS)
  • Deprivation of Liberty in the Community

These apply if you do not have the capacity to make decisions about your care or the nature of the care means you are "not free to leave" and you are under "continuous supervision and control".

Mental Capacity Act 2005

The Mental Capacity Act deals with:

  • Assessment of a person's capacity
  • Actions by carers of those who lack capacity

The Act applies to all people aged 16 years and over, in England and Wales.

Some examples of people who lack capacity may include people with:

  • Dementia
  • 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.

The 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 may change day to day.

Core principles

The Act is a law to enable and support people who lack capacity to make particular decisions. It also to maximises their ability to make decisions, or participate in decision making as far as they are able to.

The five core principles are:

  1. A person is assumed to have capacity. A lack of capacity has to be clearly determined
  2. No-one should be treated as unable to make a decision unless all reasonable steps to help them have been exhausted
  3. A person can make an unwise decision which does not necessarily mean they lack capacity
  4. If a person lacks capacity then any decision taken on their behalf must be in their best interests
  5. Any decision taken on behalf of a person lacking capacity must take into account their rights and freedom of action and should be the least restrictive option for the circumstances of the person

Best interests

Everything that is done for, or on behalf of, an individual who lacks capacity must be in that person’s best interestsThe Act provides a checklist of factors that decision-makers must work through in deciding what is in a person’s best interests.

Who can act on behalf of someone who lacks capacity?

The Act allows a person to appoint an:

  • attorney
  • carer
  • healthcare professional
  • relative
  • trusted person

to act on their behalf if they should lose capacity in the future. This includes making health and welfare decisions.

Sometimes this can be done without a formal capacity assessment, or may require assessment and permission from a Court of Protection.

When should capacity be assessed?

There are a number of instances when it is appropriate to assess, a person’s mental capacity to make a specific decision. This could be when:

  • An individuals behaviour or circumstances cause doubt as to whether they have the capacity to make a decision
  • Someone else says that they are concerned about a person’s capacity

or

  • The person has been previously diagnosed with an impairment or disturbance which affects the way their mind or brain works and it has already been shown that they lack capacity to make other decisions in their life.

Who assesses mental capacity?

The person who assesses an individual’s capacity to make a decision will usually be the person who is directly involved with the individual’s care at the time that the decision needs to be made.

This may be a healthcare or social care professional but anyone can assess capacity.

Deprivation of Liberty Safeguards

The Deprivation of Liberty Safeguards (DoLS) are part of the amendment to the  Mental Capacity Act 2005The 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.

The authorisation process

To lawfully deprive an individual of their liberty the managing authority (care home or hospital) can apply to the supervisory body (council) for DoLS authorisation.

The supervisory bodies have a duty under the Safeguards to:

  • Assess any person (there are six assessments) for whom the Managing Authorities request a deprivation
  • Authorise a deprivation if it is necessary in the best interests of a person to whom the Safeguards apply
  • Set any necessary conditions to ensure the person’s care/treatment regime meets their needs in their best interests
  • Set a timescale for how long a deprivation can last (up to a maximum of 12 months)
  • Keep records of who is being deprived of their liberty

The Supervisory Body will also ensure that the person being deprived has a ‘Representative’ who will keep in touch with the person, support them in all matters regarding the authorisation, and ask for a review of the authorisation when necessary. This Representative could be a family member, a friend or a paid advocate.

Of course, sometimes a person’s family or friends might not agree with an authorisation. The Safeguards also allow people the right of appeal against a decision in a court of law.

Deprivation of liberty in the community

The Mental Capacity Act also introduced  Deprivation of Liberty in the Community. This follows the same principles but covers a different set of individuals and different application process.

If an individual lives in supported living, a Shared Lives scheme, extra care housing or if they are living at home an application needs to be made to the Court of Protection.

The individual needs to be referred to the council who will in turn appoint an assessor who will complete  a Court of Protection Application.

A judge will then consider the evidence and will make the decision as to whether they can authorise the deprivation based upon the Court of Protection Application alone.

The judge may request more written evidence or they may require a full court hearing to take place. The judge can agree to the deprivation for a period of up to twelve months.

What should I do if I feel a person is being deprived of their liberty?

Discuss the issue with the hospital, care home or care provider. They may be able to change a person’s care or treatment to ensure the person is not being deprived, or may be able to explain why a person is not actually deprived of their liberty.

Request that the council reviews the person, to see whether they are being deprived of their liberty. This request can be in writing, or by phone.

Contact us

Contact: Adults Front of House Service

For Deprivation of Liberty Safeguards (DoLS) email: d.dols@nhs.net

Brierley Hill Health and Social Care Centre
Venture Way
Brierley Hill
DY5 1RU