Mental Capacity Act 2005 and Deprivation of Liberty Safeguards 2009

What is the Mental Capacity Act 2005?
The Mental Capacity Act provides a statutory structured framework for personal welfare, healthcare and financial decisions. This enables people to make as many decisions for themselves as possible and set out their wishes in advance.

The Act applies whenever a decision needs to be made on behalf of a person who lacks capacity, including any assessment of the need for treatment, services or support.

Why do you need to know about the Mental Capacity Act 2005?

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

What is mental capacity?

The legal definition states that a person lacks capacity if they have an impairment or disorder of the mind, brain and cannot do one or more of the four things listed below:

  1. Understand the information given to them
  2. Retain the information long enough to be able to make a decision
  3. Weigh up the information available to make the decision
  4. Communicate their decision

The five 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

What do you do if someone lacks capacity to make the decision?

  • Decide what is in their best interest
  • Ask advice from carers ad/or family
  • Consider any valid advance decisions
  • Find out if they have appointed a Lasting Power of Attorney(LPA)

What are best interest’s decisions?

  • Help people to make as much of the decision as they can
  • Support people through the decision
  • If lack of capacity is temporary, consider if the decision can be made at a more later time

Independent Mental Capacity Advocates (IMCAs)

If someone lacking capacity is facing decisions about medical treatment or changes in accommodation and are unbefriended, there is support available. An IMCA can help them and offer guidance to the decision maker.

Deprivation of Liberty Safeguards (2009)

The DoLS legislation came into force in 2009 and provides protection for vulnerable people who are accommodated in hospitals or care homes in circumstances that amount to a deprivation of their liberty and who lack the capacity to consent to the care and treatment they need.

These safeguards protect people who are unable to make decisions for themselves. This may be because of conditions such as:

  • Brain injury
  • Dementia
  • Learning disabilities
  • Mental disorder

On 19th March, the Supreme Court published its judgment in the case of P v Cheshire West and Chester Council and P and Q v Surrey County Council, which sets a clear test for deprivation of liberty. The court ruled that a person is deprived of liberty if they are:

  • Under continuous supervision and control
  • Unable to leave and
  • Lack capacity to consent to these arrangements

The Supreme Court advised that a deprivation of liberty can take place in a ‘domestic’ setting where the State is responsible for imposing the arrangements. This means that placements of people to foster care, supportive housing and community based living must be authorised by the Court of Protection if they are, or are likely to be, a deprivation of liberty. Regular, independent reviews of placements to ensure that restrictions are still in the best interests of the service-user are also required.

If you are concerned about somebody and think there should be a DoLS authorisation in place, then contact Portsmouth City Council on 02392 688666


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