Mental Capacity Act and Deprivation of Liberty Safeguards

Mental Capacity Act
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:

  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 Key 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 or family.
  • Consider any valid Advance Decisions.
  • Find out if they have appointed a Lasting Power of Attorney.

Best Interests

  • Help people to make as much of the decision as they can.
  • Support people through the decision.
  • With life sustaining treatment, begin with the fact that it is in a person’s best interest to continue to live.
  • If lack of capacity is temporary, consider if the decision can be made at a later time or date.

Independent Mental Capacity Advocates (IMCA)

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.

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Deprivation of Liberty Safeguards (DoLS)

The DoLS legislation came into force in April 2009 and may apply to any person who lacks capacity and is currently being cared for in a care home or hospital setting.

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 any of these people need to be restrained, restricted or deprived, in order to give them physical care or keep them safe, a Deprivation of Liberty Safeguards Authorisation may be required.

If you are concerned about somebody and think there should be an Authorisation in place, please make a referral to Shropshire Local Authority.

If you have any queries, please telephone 01743 255850.

IMCA service

Contactable via the duty number 0300 456 2370.

Guidance on the Mental Capacity Act or Deprivation of Liberty Safeguards

A Code of Practice is published by the Department of Health — this covers all details of the Act.

Useful websites