Mental capacity
We all have problems making decisions from time to time, but the Mental Capacity Act is about more than that.
The Mental Capacity Act 2005 is a law that protects and supports people who do not have the ability to make decisions for themselves, and provides guidance to support people who need to make decisions on behalf of someone else.
The act covers important decisions relating to an individual's property, financial affairs, health and social care. It also applies to everyday decisions, such as personal care, what to wear and what to eat.
People who cannot make a decision for themselves, are said to 'lack capacity'.
This could be due to:
- illness
- brain injury
- learning disability
- mental health problems
- the effects of drugs or alcohol
In law, a person is said to lack capacity if they cannot do one or more of the following things:
- understand the information given to them
- retain that information long enough to be able to make a decision
- weigh up the information available to make a decision
- communicate their decision
Someone may have capacity to make some decisions and not others. If they do lack the mental capacity to make a particular decision, then it must be made in their 'best interests', taking into account the person's wishes, feelings, beliefs and values.
Principles of MCA
There are five principles underpinning the Act. They inform the approach required if someone else must make a decision on your behalf if you lack mental capacity, including under Deprivation of Liberty Safeguards.
Presumption of capacity
you have the right to make your own decisions and must be assumed to have capacity to do so, unless it is proved otherwise.
Support to make your own decisions
All practicable steps must be taken to help you make your own decision, before anyone concludes you are unable to do so.
Unwise decisions
You are not to be treated as being unable to make a decision simply because the decision you make is seen as unwise.
Best interests
Any decision made, or action taken, on your behalf if you lack capacity must be made in your best interests.
Least restrictive intervention
Anyone making a decision on your behalf must consider all effective alternatives and choose the less restrictive of your basic rights and freedoms in relation to risks involved.
Deprivation of Liberty Safeguards
The Deprivation of Liberty Safeguards (DoLS) are part of the Mental Capacity Act 2005, and 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 a person of their liberty, to provide a particular care plan.
Whether someone is deprived of their liberty depends on the person's specific circumstances, and any assessment will consider the amount of control that the care home or hospital has over the person.
In summary, the safeguards ensure:
- that the arrangements are in the person’s best interest
- the person is appointed someone to represent them
- the person is given a legal right of appeal over the arrangements
- the arrangements are reviewed and continue for no longer than necessary
Roles and responsibilities
The care home or hospital is known as the ‘managing authority’. Where a managing authority thinks it needs to deprive someone of their liberty they have to ask for this to be authorised by a ‘supervisory body.’ They can do this up to 28 days in advance of when they plan to deprive the person of their liberty.
Under DoLS the supervisory body is the local authority. For care homes, this is the local authority where the person is ordinarily resident. Usually this will be the local authority where the care home is located, unless the person is funded by a different local authority.
When the local authority receives request from a managing authority, it has to decide within 21 days whether the person can be deprived of their liberty. To do this, the local authority appoints assessors to see if the conditions are met to allow the person to be deprived of their liberty under the safeguards.
These include:
- the person is 18 or over (different safeguards apply for children)
- the person lacks capacity to decide for themselves about the restrictions which are proposed so they can receive the necessary care and treatment
- the restrictions would deprive the person of their liberty
- the proposed restrictions would be in the person’s best interests
- whether the person should instead be considered for detention under the Mental Health Act
If any of the conditions are not met, deprivation of liberty cannot be authorised. This may mean that the care home or hospital has to change its care plan. For example, if it would be in the person’s best interests to be supported in a less restrictive way.
If all conditions are met, the local authority must authorise the deprivation of liberty and inform the person and managing authority in writing. It can be authorised for up to one year, but the person does not have to be deprived of their liberty for the duration of the authorisation. The restrictions should stop as soon as they are no longer required.
Deprivation of Liberty in the community
The DoLS only apply where someone is in a hospital or care home setting. It does not cover other living arrangements such as supported living, shared lives homes, or when the relevant person is living in their own home.
In these circumstances, a Community Deprivation of Liberty Safeguards should be applied for through the Court of Protection via the responsible body.
Advocacy in H&F
Advocates are independent professionals who support people to:
- know what their rights are
- understand their options
- and to voice their views
Advocates are important in making sure that people are involved and included as much as possible in decisions about their health and care.
Professionals have a duty to refer people for advocacy support where they are eligible. This referral must happen as soon as possible to ensure advocates can effectively and efficiently support the person.
To learn more about the different types of advocacy available, and how to make a referral for statutory advocacy services, visit the Libra Partnership website.
You can also find out more about community advocacy in Hammersmith & Fulham on the H&F Mencap website, where you can self-refer for support from an advocate.
Planning ahead
The Mental Capacity Act also allows us to plan ahead for a time when we are unable to make these decisions for ourselves.
Lasting Power of Attorney
You can use a lasting power of attorney (LPA) to plan for when you no longer have capacity to make your own decisions.
A lasting power of attorney is a legal document that lets you appoint someone to make decisions for you.
There are two types of lasting power of attorney: one for health and care decisions and the other for financial decisions.
Health and care decisions
A health and welfare attorney could make decisions about where you live, medical treatment, or your day-today care, including your diet and what you wear, if there comes a time when you are unable to make these decisions for yourself.
Financial decisions
If there comes a time when you can’t manage your finances anymore, the person you appoint as your attorney will be able do this for you.
This can include paying your bills, collecting your income and benefits, or selling your house. You can also ask for a financial LPA to act on your behalf whilst you still have capacity.
Appointing an LPA helps to start a conversation about what you want to happen in the future, and ensures that the person you want to make decisions for you will be able to do so, legally.
LPAs must be registered with the Office of the Public Guardian. For more information visit GOV.UK - Power of Attorney.
Advance statements
Advance statements can be used to record information about you, your lifestyle, and the care you would prefer to receive. You can do this at no cost.
It can cover any aspect of your care including:
- where you want to be cared for, for example at home or in a hospice
- your daily routine, for example when you like to get up and eat your meals
- your religious beliefs and how these affect your care
- anything you do not want to happen to you
It is not the same as a living will (advance decision) which is only used to refuse specific medical treatments.
An advance statement:
- will only be used to guide decisions if you lack mental capacity to make or communicate a decision for yourself
- is not legally binding. This means that the people caring for you do not have to follow the exact instructions in it, but they must use it as a guide when making decisions on your behalf
- can be a very useful document for your relatives or care providers as it lets them know about your wishes and feelings in the event that you lose capacity to make decisions yourself
Compassion in Dying have lots of information to guide you in planning for your future.
Useful links
GOV.UK - Mental Capacity Act code of practice