Mental Capacity Act and Deprivation of Liberty Safeguards

What is the Mental Capacity Act?

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?

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 or brain, and cannot do one or more of the four things listed below:

Understand the information given to them
Retain the information long enough to be able to make a decision
Weigh up the information available to make the decision
Communicate their decision

The five Key Principles are:

A presumption of capacity
The right for individuals to be supported to make their own decisions
Individuals retain the right to make eccentric or unwise decisions
All decisions should be made in the best interests of the individual
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?

Try and find out the person’s past and present wishes and feelings
Check to see if they may regain capacity
Ask advice from carers or family.
Consider any valid Advance Decisions
Find out if they have appointed a Lasting Power of Attorney.
Decide what is in their best interest

Best Interests

Help people to make as much of the decision as they can.
Support people through the decision.
With life sustaining treatment, no decisions should be motivated by a desire to bring about the person’s death.
If lack of capacity is temporary, consider if the decision can be made at a later time or date.
Consult those important to the person and other professionals
See if there are other options that may be less restrictive

Deprivation of Liberty Safeguards (DoLS)

The DoLS legislation came into force in April 2009 and originally applied to any person who lacks capacity and is currently being cared for in a care home or hospital setting. Hospital and care home managers would need to seek an authorisation from Barking & Dagenham, Havering and Redbridge Councils Dols teams.

These arrangements were extended to cover people in other situations following decisions made by the Supreme Court in 2014 known as the Cheshire West case. This means that for those who live in settings such as a supported tenancy or their own home they can still be subject to a deprivation of liberty dependent upon the “acid test” being applied i.e. is the person subject to continuous supervision and control? And are they free to leave? – with the focus being not on whether a person seems to be wanting to leave, but on how those who support them would react if they did want to leave. If the answer is yes to these questions and the person lacks capacity to consent to the arrangements then an application will need to be made to the Court of Protection by those funding the care (either the Council or CCG).

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

Brain injury
Dementia
Learning disability
Mental disorder

If you are concerned about somebody and think there should be an Authorisation in place, please make a referral to relevant Council Dols teams (or speak to the person’s nurse or social worker).

Submitting a Deprivation of Liberty Safeguard (DoLS) application:

To make an application / request a review for a Deprivation of Liberty Safeguard the relevant guidance and paperwork can be found on the following link:

Deprivation of liberty safeguards forms and guidance

If you have any queries about making a DoLS application to the Council, contact the DoLS team where the person resides:

London Borough of Havering

Applications can be completed online at: Deprivation of liberty safeguards

Email: dols@havering.gov.uk

Telephone: 01708 433550

London Borough of Barking and Dagenham

Applications should be sent to email: DOLS@lbbd.gov.uk

Telephone: 020 8227 2064 / 2482

London Borough of Redbridge

Completed applications should be sent via email: biadolsteam@redbridge.gov.uk

Telephone: 020 8708 5395

For those living at home, supported living or residential college (16+), please contact the Redbridge Safeguarding Adults & Protection Team on 020 8708 5395.

Changes to the Deprivation of Liberty Safeguards with the Liberty Protection Safeguards (LPS)

The Government have decided to replace the current DOLS scheme with the Liberty Protection Safeguards. This will take some time to come into force. The new scheme will seek to improve ways to ensure that the wishes and feelings of the person are a part of the process and that LPS planning starts a lot sooner when best interest decisions are needed. Further information can be found on the Social Care Institute for Excellence website

Guidance on the Mental Capacity Act or Deprivation of Liberty Safeguards

The Department of Health issued a Code of Practice which covers all details of the Act.

Independent Mental Capacity Advocates (IMCA)

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

When a serious decision needs to be made about a person’s change of accommodation or treatment, or there are Safeguarding Concerns or a care review is due, we are able to:

Gather information about the person, working to understand his or her views, wishes and beliefs
Share this information with social workers or doctors to ensure key decision-makers are aware of the person’s feelings
Assess the proposed decision, look into other options, seeks secondary professional opinions and find a viable option which best fits the person’s wishes
Challenge decisions where necessary, both formally and informally

In this way, advocates provide a vital support network which protects vulnerable people’s rights.

IMCA services contact details:

London Borough of Havering - Email: Havering MIND: havering.advocacy@mithn.org.uk Telephone: 01708 560660

London Borough of Barking and Dagenham Telephone: 020 7358 7070 - Email: chadvocacy@ch1889.org

London Borough of Redbridge - Email: redbridge@voiceability.org - Telephone: 020 8900 2221 (Helpline Mon-Fri, 9am-5pm)

Useful websites and resources

Downloads

Mental Capacity Act and Deprivation of Liberty Safeguards Policy