Mental Capacity and Deprivation of Liberty Safeguards (MCA/DoLS)

The Mental Capacity Act (2005) is designed to protect and restore power to those vulnerable people who may lack capacity to make certain decisions, due to the way their mind is affected by illness or disability, or the effects of drugs or alcohol. The MCA also supports those who have capacity and choose to plan for their future.

The MCA applies to everyone working in social care, health and other sectors who is involved in the support and treatment of people aged 16 and over who live in England and Wales, and who are unable to make all or some decisions for themselves.

It covers decisions about day-to-day things like what to wear or what to buy for the weekly shop, or serious life-changing decisions like whether to move into a care home or have major surgery.

Examples of people who may lack capacity include those with:

• dementia
• a severe learning disability
• a brain injury
• a mental health illness
• a stroke
• unconsciousness caused by an anaesthetic or sudden accident

But just because a person has one of these health conditions doesn't necessarily mean they lack the capacity to make a specific decision.

Someone can lack capacity to make some decisions (for example, to decide on complex financial issues) but still have the capacity to make other decisions (for example, to decide what items to buy at the local shop).

The MCA is based on five key principles:

• Principle 1: Presumption of capacity, assume a person has the capacity to make a decision themselves, unless it's proved otherwise
• Principle 2: A person must be given all practicable help before anyone treats them as not being able to make their own decisions.
• Principle 3: Unwise decisions; don't treat a person as lacking the capacity to make a decision just because they make an unwise decision
• Principle 4: Best Interests; if you make a decision for someone who doesn't have capacity, it must be in their best interests
• Principle 5: Less restrictive option; treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms

The MCA also allows people to express their preferences for care and treatment, and to appoint a trusted person to make a decision on their behalf should they lack capacity in the future.

Independent mental capacity advocate (IMCA) – IMCAs are a statutory safeguard for people who lack capacity to make some important decisions. This includes decisions about where the person lives and serious medical treatment when the person does not have family of friends who can represent them. IMCAs can also represent individuals who are the focus of adult protection proceedings.

The two-stage functional test of capacity

In order to decide whether an individual has the capacity to make a particular decision two questions must be answered:

Stage 1. Is there an impairment of or disturbance in the functioning of a person’s mind or brain? If so,

Stage 2. Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?

The MCA says that a person is unable to make their own decision if they cannot do one or more of the following four things:

• understand information given to them
• retain that information long enough to be able to make the decision
• weigh up the information available to make the decision
• communicate their decision – this could be by talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand.

Deprivation of Liberty (DoLS)

The Deprivation of Liberty Safeguards are an amendment to the Mental Capacity Act 2005. They apply in England and Wales only.

The Mental Capacity Act allows restraint and restrictions to be used – but only if they are in a person's best interests.  Extra safeguards are needed if the restrictions and restraint used will deprive a person of their liberty. These are called the Deprivation of Liberty Safeguards. The Deprivation of Liberty

Safeguards can only be used if the person will be deprived of their liberty in a care home or hospital. In other settings the Court of Protection can authorise a deprivation of liberty.

Care homes or hospitals must ask a local authority if they can deprive a person of their liberty. This is called requesting a standard authorisation. There are six assessments which have to take place before a standard authorisation can be given. If a standard authorisation is given, one key safeguard is that the person has someone appointed with legal powers to represent them. This is called the relevant person's representative and will usually be a family member or friend. Other safeguards include rights to challenge authorisations in the Court of Protection, and access to Independent Mental Capacity Advocates (IMCAs).

Liberty Protection Safeguards (LPS)

The Mental Capacity (Amendment) Act will replace the Deprivation of Liberty Safeguards (DoLS) with a scheme known as the Liberty Protection Safeguards (LPS). These are due to come into effect on April 1^st, 2022.

For more information on MCA, DoLS & LPS please see the SCIE website