6. Mental Capacity Act and Deprivation of Liberty Safeguards (DOLS)
Mental Capacity Act 2005
The Mental Capacity Act is a piece of legislation that applies to everybody involved in the support, care and treatment of individuals aged 16 and over who may, at some point in their lives, have some difficulties making decisions for themselves. It is designed to protect vulnerable people, ensure their voice is heard and prevent arbitrary decisions being made on their behalf.
The act itself has five statutory principles which must underpin all acts carried out and decisions made for those individuals who lack capacity.
- Firstly every adult has the right to make their own decisions and must be presumed to have capacity unless it can be proven otherwise.
- An individual must be given all practicable help to make their own decisions.
- Every adult has the right to make what, to other people, may seem like unwise decisions. An unwise decision does not equate to lacking capacity.
- Anything done for on behalf of somebody lacking capacity must be done in their best interests.
- Anybody making a decision on behalf of somebody who may lack capacity must consider the least restrictive approach and must act in a way that least restricts the person’s rights and freedoms.
In order for the Mental Capacity Act to be applied it must first be established whether the individual concerned does indeed lack capacity to make the decision at hand. It must be remembered that mental capacity is decision specific and somebody may have capacity in some areas and not in others. A fresh capacity assessment should be completed for each decision needing to be taken.
There is a specific capacity assessment outlined in the Act. Firstly is there an impairment or disturbance in the functioning of the mind or brain? This could be due for example to a learning difficulty, dementia, head injury or delirium. The impairment could be temporary or permanent. Secondly, is this impairment or disturbance sufficient to mean that the individual cannot make the decision at the time it needs to be made? The Mental Capacity Act states that a person is unable to make their own decision if they cannot do one or more of the following:
- Understand information given to them about the decision.
- Retain that information long enough to make a decision.
- Use and weigh up the information given in order to make a decision.
- Communicate their decision – this can be by any means.
If an individual is assessed as lacking capacity to make a certain decision then it is necessary for somebody to make that decision on their behalf (the decision maker). This could be a relatively straight-forward and daily decision, for example, what clothes to wear or food to eat. Alternatively it could be a much more serious and complex decision, for example whether to have medical treatment or surgery. Any decision taken must be in the person’s best interests. In coming to the decision the decision maker must consider the ‘Best Interest Checklist’ which is outlined in the Act. This includes consulting others involved in the person’s care -for example family, friends and other professionals –considering the wishes and feelings of the individual concerned – both past and present – considering whether the person may regain capacity to make the decision themselves and taking account of all relevant circumstances of the case. This is a non-exhaustive list but any decision maker must demonstrate how they have considered this checklist when making any decision on behalf of somebody who may lack capacity.
When used correctly, the Mental Capacity Act provides a vital safeguard and protection for individuals who may struggle to make decisions for themselves. It should ensure that their voice is heard and considered in all aspects of their care as well as those of their families. It should also make certain that the isolated approach of the ‘professional knows best’ approach to decision making becomes a thing of the past as they are now legally obliged to follow the principles of the Act in all their dealings with vulnerable people who may lack capacity.
Deprivation of Liberty Safeguards (DOLS)
The Deprivation of Liberty Safeguards (DOLS) are part of the Mental Capacity Act and were introduced in 2009.
The Deprivation of Liberty safeguards (DOLS) are a range of safeguards intended to protect vulnerable people 18 years old or over, who have a mental disorder and lack capacity to make care and treatment decisions for themselves, whose care or treatment in a hospital or registered care home amounts to (or will amount to) a deprivation of liberty (DOL) under article 5 of the Human Rights Act 1998. The DOLS do not apply to people detained in hospital under the amended Mental Health Act 1983. However, they do apply to people received into guardianship under the Mental Health Act, or people subject to a community treatment order, as neither of these orders authorise a deprivation of liberty. The main purpose of these safeguards is to prevent arbitrary deprivation of liberty but also to provide an authorisation framework for situations when it is necessary to deprive someone of their liberty, in order to care for them or treat them in a way that protects them from harm. Under DOLS, a hospital or registered care home becomes a “managing authority”, with the local authority or primary care trust becoming a ‘supervisory body’. Each has their own set of duties and responsibilities, although some of these are shared. Managing authorities will have a duty to identify existing or potential DOL and make a referral to the relevant supervisory body. On receipt of an appropriate DOLS referral, the supervisory body will have to commission six different assessments as part of the process of determining whether or not to grant authorisation. The assessments are as follows; to confirm that the relevant person is 18 or over to establish whether the relevant person has a mental disorder within the meaning of the Mental Health Act 1983 to establish whether the relevant person lacks capacity to make decisions in relation to the care or treatment that will deprive them of their liberty to establish, firstly, whether deprivation of liberty is occurring or is going to occur If deprivation of liberty is occurring or is going to occur, establish; it is in the best interests of the relevant person to be deprived of liberty it is necessary for them to be deprived of liberty in order to prevent harm to themselves and deprivation of liberty is a proportionate response to the likelihood of the relevant person suffering harm and the seriousness of that harm If the care or treatment is likely to continue beyond the duration of the authorisation, application for further authorisation must be made prior to the expiry of the existing one. If authorisation is refused, the hospital or care home will need to provide the care or treatment in a less restrictive way, which does not amount to a deprivation of liberty. The deprivation of liberty safeguards will be monitored by the Care Quality Commission as part of their routine inspection regime. The court of protection will be the final decision maker in situations where there is dispute, or when an appeal has been made.