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Protecting adults from harm

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:

  • 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”.

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.

Core principles

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.

Best interests

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

When can a designated decision-maker act on behalf of someone who lacks capacity?

The Act allows a person to appoint an attorney, carer, healthcare professional, relative or 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 makes the mental capacity assessment?

The person who assesses an individual’s capacity to make a decision will usually be the person who is directly concerned with the individual’s case at the time that the decision needs to be made. This is usually a healthcare or social care professional.

Deprivation of Liberty Safeguards

The Deprivation of Liberty Safeguards (DoLS) provide protection for people who are in hospitals or care homes to ensure they are cared for in a way that does not restrict their freedom.  They need more care and protection than others to ensure they do not suffer harm and are deprived of their liberty because they cannot make their own decisions about their care or treatment as they lack the mental capacity to do so.

Hospitals and care homes always try to avoid this and it is only used if it is the least restrictive way to ensure an individuals best interests to prevent harm.

Your liberty can be taken away under the Mental Capacity act if: 
• You are 16 or over
• You lack capacity to give consent to your care/treatment
• Your care home or hospital have applied for DoLS authorisation from the supervisory body
• The Deprivation of Liberty safeguards are followed

The authorisation process

To lawfully deprive an individual of their liberty the managing authority can apply to the supervisory body (PCT/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.

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

  • Discuss the issue with the hospital or care home. 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 Supervisory Body reviews the person, to see whether they are being deprived of their liberty. This request can be in writing, or by phone.

You can also find out more on our Publications page.

  • DoLS Office

    MHA Admin/DoLS Office
    Henry Lautch Centre
    Bushey Fields Hospital
    Bushey Fields Road
    Dudley
    DY1 2LS

    Telephone: 01384 324542

    Email: DoLS Office

  • Dudley Adult Social Care: 01384 815822


    Dudley - Walsall Mental Health Trust: 01384 360135

    Dudley Community Mental Health Teams:

    Sedgley: 01902 575921
    Dudley: 01384 813880
    Brierley Hill: 01384 366785
    Stourbridge: 01384 366550
    Halesowen: 0121 585 5506