Having mental capacity means being able to understand and retain information and to make an informed decision based on that information. Someone might not have capacity because they have:
- A learning disability
- A mental health problem
- A brain injury
- A stroke
The Mental Capacity Act (2005) (MCA) aims to ensure that people who lack capacity to make decisions by themselves get the support they need and for them to be involved as much as possible in making decisions about their lives.
It also outlines how professionals should complete an assessment of mental capacity, in which situations other people can make decisions for someone who cannot act on their own and how people can plan ahead in case they become unable to make decisions in the future.
Making decisions on behalf of individuals
The Mental Capacity Act (2005) provides the legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make particular decisions for themselves.
For everyone working with and/or caring for an adult, who may lack capacity to make a specific decision for themselves, the same rules apply whether the decisions are life-changing events or everyday matters.
There are 5 principles at the heart of MCA which should be used to underpin all assessments and decisions taken in relation to those who lack capacity:
Principle 1: A presumption of capacity. Every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise. Do not assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability.
Principle 2: Individuals being supported to make their own decisions. Make every effort to encourage and support people to make the decision for themselves. If lack of capacity is established, it is still important to involve the person as far as possible in making decisions exploring their wants, wishes, values and beliefs.
Principle 3: Unwise decisions. People have the right to make what others might regard as an unwise or eccentric decision.
Principle 4: Best interests. If a person has been assessed as lacking capacity then any action taken, or any decision made for, or on behalf of that person, must be made in his or her best interests.
Principle 5: Less restrictive option. Someone making a decision or acting on behalf of a person who lacks capacity must consider whether it is possible to decide or act in a way that would interfere less with the person’s rights and freedoms of action, or whether there is a need to decide or act at all.
For people who lack capacity to consent to care arrangements in a hospital or care home, the government brought in an Amendment to the Mental Capacity Act in 2005 in order to protect that person’s Human Rights - Deprivation of Liberty Safeguards.
Making Decisions - Guides to the Mental Capacity Act
Deprivation of Liberty Safeguards
Deprivation of Liberty Safeguards (DoLs) were introduced, as an addendum to the Mental Capacity Act in 2007, in order to protect someone’s Article 5 Human Rights, Right to Liberty. The Article states that no one shall be deprived of their liberty without recourse to the courts in order to challenge that detention. A DoLs Authorization gives the person or their representative legal recourse to challenge the placement.
It is up to the care home or hospital to identify when a Deprivation may be occurring. This could be one big restriction or a number of small restrictions affecting a person’s liberty. The care home or hospital, (known as the Managing Authority in the DoLs guidance) should submit a Form 1, when a deprivation is occurring, to the Local Authority (known as the Supervisory Body in the guidance). In the case of renewals the Care Home should submit a Form 2.
A submission of a Form 1, or Form 2 renewal, starts the DoLs process which has safeguards for the person. These safeguards ensure that:
- the arrangements are in the person's best interest
- the person has someone appointed to represent them
- the person is given a legal right of appeal over the arrangements
- the arrangements are reviewed and carry on for no longer than is necessary
A court decision in 2014 determined that a deprivation of liberty occurs when:
- The person is under continuous supervision and control, and
- Is not free to leave, and
- The person lacks capacity to consent to these arrangements.
The DoLs assessment is made up of six assessments these being:
- Age: are they 18 years or over? Usually completed by the Best Interest Assessor (Form 3).
- Eligibility: are they eligible for DoLs? Usually completed by the Section 12 registered Psychiatrist (Form 4).
- Mental Health: Would the Mental Health Act be more appropriate? Usually completed by the Section 12 registered Psychiatrist (Form 4).
- No refusal: is there a valid LPA for Health and Welfare? Usually completed by the Best Interest Assessor (Form 3).
- Mental capacity Assessment: Can they consent to care arrangements? Usually completed by the Section 12 registered Psychiatrist (Form 4).
- Best interest assessment: Are the restrictions in that person's best interest? Usually completed by the Best Interest Assessor (Form 3).
Once the Form 1 or 2 is received by the Supervisory Body, in this case Rochdale Borough Council, and the above conditions are met, the Council will ask a Section 12 registered Psychiatrist and a Best Interest Assessor (BIA) to complete their assessments.
The BIA will select a representative for the individual experiencing the deprivation (known as a relevant person's representative or RPR) in order to monitor the situation and challenge the placement where appropriate. This can either be a family member or a paid RPR. Following case law (the AJ judgement), the BIA will take care to ensure the person chosen as RPR is willing to challenge the deprivation if they feel it is not in the person's interest. In some cases, the BIA may recommend an independent advocate, usually an Independent Mental Capacity Advocate (known as a paid RPR).
Once the S12 Doctor and BIA have completed their assessments, they submit them to the Supervisory Body for scrutiny and authorisation. In Rochdale the DoLs Authorisations are approved by the signatory, a member of staff who is BIA trained, and who are at managerial level (Grade 9 or above, up to director level). Once authorised the paperwork is sent out to the RPR, care home and anyone listed as an interested person and the authorisation is in place.
There are 2 types of DoLs requests on the form 1. An Urgent request and a Standard request. Upon receipt of a DoLs request for a Standard authorisation, the Supervisory Body (Rochdale Council) has 28 days in which to approve the DoLs, or within 7 days from receipt of an Urgent DoLs request.
The Mental Capacity Act (DoLS) provide that deprivation of liberty:
- Should be avoided whenever possible.
- Should only be authorised in cases where it is in the person's best interests and the only way to keep them safe.
- Should be for as short a time as possible.
- Should only be for a particular plan or course of action.
Care Home, Care Homes with Nursing, Independent Hospitals and Acute Hospitals are Managing Authorities. Managing Authorities must make a referral to the Rochdale Council Supervisory Body in order to lawfully deprive someone of their liberty.
Forms and letters
To make an Application for a Deprivation of Liberty Authorisation or to request a review, send the relevant form by email or fax to:
Fax: 0845 409 3661