Mental Capacity & Deprivation of Liberty – advice & resources for all

Every day we make decisions about our lives. These decisions could be about simple things like what we eat and what we wear. They could also be about more major things like our health, our care and our finances. Our mental capacity affects how easily we are able to make such decisions. Some people may lack mental capacity to make certain decisions because they have:

The Mental Capacity Act came into force in 2007. It covers issues relating to making decisions where people aged 16 or over may lack capacity. It also allows for people to plan ahead if they think they may lack capacity in the future.

Mental Capacity Act 2005 (MCA)

The Mental Capacity Act (MCA) confirms in legislation that it should be assumed that an adult (aged 16 or over) has full legal capacity to make decisions for themselves (the right to autonomy) unless it can be shown that they lack capacity to make a decision for themselves at the time the decision needs to be made.

The Act also states that people must be given all appropriate help and support to enable them to make their own decisions or to maximise their participation in any decision making process.

There are five ‘statutory principles’ – the values that underpin the legal requirements in the Act:

  1. A person must be assumed to have capacity unless it is established that they lack capacity.
  2. A person is not to be treated as unable to make a decision unless all the practicable steps to help his to do so have been taken without success.
  3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
  4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
  5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

For more information on the MCA and supporting resources visit the Manchester City Council website www.manchester.gov.uk

Deprivation of Liberty Safeguards (DoLS)

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 them of their liberty, in order to provide a particular care plan. It is then the role of Manchester Adult Social Care to arrange for assessments to ensure the deprivation of liberty is in the person’s best interests.

The DoLS provides that deprivation of liberty:

  • should be avoided wherever possible;
  • should only be authorised in cases where it is in the relevant person’s best interests and the only way to keep them safe;
  • should be for as short a time as possible; and
  • should be only for a particular treatment plan or course of action.

Manchester City Council has the role of hosting the Supervisory Bodies on behalf of Manchester Local Authority and Manchester NHS, by authority of a Collaborative Agreement.

Care Homes, Care Homes with Nursing, Independent Hospitals and Acute Hospitals are Managing Authorities. Managing Authorities must make a referral to the Supervisory Body in order to lawfully deprive someone of their liberty.

Deprivation of Liberty can also occur in a domestic setting. This can include Supported Housing schemes, Shared Lives services and Post-18 residential colleges.

The ‘acid test’ for whether ANY arrangement (care homes, hospitals or domestic settings) amount to a deprivation of liberty is as follows:

  • Is the individual subject to continuous supervision and control; and
  • Is the individual NOT free to leave the placement; and
  • Is the individual unable to consent to such arrangements?

If the answer to all of the above questions is ‘Yes’, then the person is deprived of their liberty and authorisation must be sought either via the DoLS Safeguards or via Court of Protection.

A deprivation of liberty that does not have the appropriate authorisation will be unlawful.

Further information, guidance and resources on MCA and Deprivation of Liberty can be found on the Manchester City Council website www.manchester.gov.uk.

If you need to get in touch with the Manchester DoLS Team for further information or guidance you can email them at: dolssafeguarding@manchester.gov.uk

National Mental Capacity Act Competency Framework

The presumption of capacity should be the underpinning ethos of the interactions between health, social care and public sector workers whenever they are required to interact and/or build relationships with any member of the public.

In some circumstances there may be concerns which lead staff across the full range of public service settings to work with individuals who may, for a whole host of reasons, be unable to decide for themselves. In these cases, staff need to understand, and apply, the framework of the Mental Capacity Act to their areas of responsibility, ensuring the individual’s rights in situations where someone needs additional support or safeguards to be put in place.

The National Mental Capacity Act Competency Framework can be downloaded from www.ncpqsw.com/national-mental-capacity-act-competency-framework

Mental Capacity Assessments – resources for practitioners

The MSB have developed guidance for practitioners completing capacity assessments with adults or young people in your role

  • The MSB Citywide Capacity Template (issued April 2017) will provide practitioners with all the guidance and support needed to properly document a capacity assessment. It provides a clear structure on which evidence can be recorded and a helpful guide at the back of the document that should help to answer the most commonly asked questions about the capacity test.
  • The MSB Capacity Audit Standards (issued April 2017) will help practitioners and their team to identify ways in which they can develop their practice in this important area.

Independent Mental Capacity Advocates

Independent Mental Capacity Advocates (IMCAs) can support and represent people when they lack mental capacity to make certain important decisions.

The role of an IMCA is to help ensure that decisions are reached in the person’s best interests, taking into account their views, wishes, beliefs and values. People who need decisions making for them about moving home, going into hospital, having treatment or being deprived of their liberty in order to receive the care they need might be eligible for an IMCA.

Usually it is the professional involved with a person who refers them to the IMCA service. In Manchester the IMCA service is provided by the Manchester Advocacy Hub – visit their website www.manchesteradvocacyhub.co.uk

An IMCA can only be requested by the local authority or an NHS body and only in specific circumstances. These are:

  • An NHS body is proposing to provide serious medical treatment
  • An NHS body or local authority is proposing to arrange accommodation in hospital or a care home
  • An application for Deprivation of Liberty Safeguards (DoLS) is being made
  • Care Reviews
  • Safeguarding adults.

An IMCA will not usually be needed when someone has family, friends or others who can represent the person, but there will be some exceptions to this. Find our more in our IMCA  resource.

MSAB Person in a Position of Trust (PiPoT) Guidance

The MSAB PiPOT Policy (Published March 2018) provides a framework for working with adults who are deemed to have mental capacity and who are at risk of serious harm or death through self-neglect, risk taking behaviour or refusal of services.

It aims to provide professionals from Manchester Safeguarding Adults Board (MSAB) partner agencies with a framework for the management of complex cases where, despite ongoing work, serious risks are still present.

The protocol is a process to discuss, identify and document serious, current risks for high risk cases. Where appropriate it provides a multi-agency response and can formulate and review an action plan identifying multi-agency responsibility. It will also identify and record those situations where there is a reputational risk and provide access into the escalation processes of the organisation.

The High Risk Protocol (HRP) is for adults who have care and support needs and are at risk of significant harm or death and have the mental capacity to make unwise choices. If the adult is assessed as having the capacity to understand the consequences of refusing services, then HRP should be considered.

The MSAB HRP Multi_Agency Protocol (Published March 2018) provides an overarching policy for the North West Region which has been ratified by the North West ADASS Regional Safeguarding Group. This should be read in conjunction with the MSAB Person in a Position of Trust (PiPoT) Guidance and existing local Safeguarding Adults Procedures and Practice Guidance.

Planning for the Future

The Mental Capacity Act sets out a range of ways by which people can plan for a time when they are no longer able to make decisions for themselves.

A Lasting Power of Attorney (LPA) is a legal document that, in the event that a person later becomes unable to make certain decisions, lets a trusted person make these decisions on their behalf.

There are two different types of Lasting Power of Attorney (LPA):

  • A ‘Health and Welfare LPA’ allows a person to choose one or more people to make decisions about things such as medical treatment on their behalf.
  • A ‘Property and Financial Affairs LPA’ – allows a person to choose one or more people to make property and financial affairs decisions on their behalf.

The Mental Capacity Act also provides for Advanced Decisions  to Refuse Treatment (also known as Advanced Directives). This enables someone to plan ahead and refuse specified medical treatment in the future, for a time when they lack the mental capacity to consent or refuse that treatment.

A person may also make an Advanced Statement as to the treatment or care they would like to be given in the future if they should become unable to decide for themselves. This is not legally binding but will help others to understanding their wishes and preferences.
These measures can help people to plan for how their health, wellbeing and financial affairs will be looked after when they are no longer able to do this for themselves.

More information about Lasting Powers of Attorney, Advanced Decisions and Advanced Statements can be found  on the government website www.gov.uk/power-of-attorney and from Age UK on their website www.ageuk.org.uk and the Alzheimers Society website www.alzheimers.org.uk

Legislation

Mental Capacity Act 2005
The Mental Capacity Act 2005 provides the legal framework for acting for, and making decisions on behalf of, individuals who lack the mental capacity to make specific decisions for themselves.

The underlying philosophy of the Act is to ensure that any decision made, or action taken, on behalf of someone who lacks the capacity to make decision or act for themselves is made in their Best Interests.

Deprivation of Liberty (DoLS)
Depriving someone (18 or over) of their liberty is sometimes the only way to keep people safe and healthy. However, it should be avoided wherever possible, and must be done lawfully. The Mental Capacity Act Deprivation of Liberty Safeguards (MCA DoLS) provide 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 or treatment they need.

Further resources

The Mental Health in Manchester website www.mhim.org.uk is for people who want to know more about how to look after their emotional health and wellbeing. On the site is information and resources about mental health and mental health problems and advice about where to go for help;

Useful publications & websites for MCA
The Law Commission published a report  on 13 March 2017, together with a draft Bill. The final report and draft Bill recommends that the DoLS be repealed with pressing urgency and sets out a replacement scheme for the DoLS – which we have called the Liberty Protection Safeguards. In addition the draft Bill makes wider reforms to the Mental Capacity Act which ensure greater safeguards for persons before they are deprived of their liberty.

Alongside the final report is published an impact assessment, the consultation analysis, a summary of the report and an easy read version of the summary. These documents can all be found on the website  www.lawcom.gov.uk/mental-capacity-and-deprivation-of-liberty

Department of Health
The DoH has issued the Mental Capacity Act Code of Practice which is available from the website  www.gov.uk

Office of Public Guardianship has published a wealth of information about making decisions – available from the website www.gov.uk and linked to here:

The Easyhealth wesbite www.easyhealth.org.uk was made so that people know where to find ‘accessible’ health information – ‘accessible’ information is information that uses easy words with pictures.

There are over 500 leaflets on Easyhealth, made by many different organisations, most of which can be printed off.

Useful publications & websites for DoLS
Manchester City Council website MCA and DoLS pages www.manchester.gov.uk

Department of Health – Standard forms and guidance that hospitals and care homes must use can be found on the website www.gov.uk/government/deprivation-of-liberty-safeguards-forms-and-guidance

Information about Deprivation of Liberty Orders on the website www.gov.uk

Information about Deprivation of Liberty Code of Practice on the website webarchive.gov.uk

Office of Public Guardianship – the MCA DoLS Safeguards on the website  webarchive.gov.uk

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