Focus II Manual 190 217

North East & Yorkshire Healthcare Service
Mental Capacity Act

2005
Including Deprivation of Liberty

Safeguards (DoLS)
Working together to achieve more…. www.neyhs.org.uk
Aims & Objectives
 What is Mental Capacity ?
 The acts and main principles
 Assessing Capacity and making best interest Decisions
 Discuss terminologies of the Act
 What is DoLS?
 By the end of this session you will have a understanding of the Mental
Capacity Act and its principles that underpin it.

Introduction
 The Mental Capacity Act of 2005 was introduced because individuals within
Health & Social Care were not recognised to be able to make their own
decisions.
 With this organisations would make decisions for the individual that they
believed were in the best interests of the individual.
 What this meant was that individuals did not have their own say on how
they wanted or how their care would be provided for them. This meant
that individuals were not recognised as having sufficient capacity or
knowledge to make their own decisions.

What is Capacity?
 The mental Capacity Act determines capacity as having the ability to make
a decision
 This could be:
 Decisions about and individuals daily living
 Decisions surrounding domiciliary care
 Decisions that may have legal consequences
 For example to refuse medical treatment, their finances including their

choice of living and the accommodation to which they will reside

What are the acts main principles S1
 A person must be assumed to have capacity unless proven otherwise.
 Until all practical steps have been taken to help someone make a decision
without success, they can not be treated as lacking capacity.
 An unwise decision does not in itself does not indicate a lack of capacity
 Any act or decision made on behalf of the person lacking capacity must be
done in the persons best interests.
 Any act or decision must be the least restrictive option to the person in
terms of rights and freedoms of action.

The definition of Lack of Capacity S2
…. A person lacks capacity in relation to a matter if at

the MATERIAL time he / she is unable to make a
decision / for him, herself In relation to the matter
because of an impairment of, or a disturbance in the
functioning of the mind or brain.

Code in Practice:
 Anyone who claims that an individual lacks capacity

should be able to prove and provide evidence.
 They need to be able to show that on the balance of
probabilities that the individual lacks capacity to make a
particular decision at the time in needs to be made.
 Proof could be established against the functional test of
capacity

The functional test of Capacity
 To have capacity the person must:
 1. Understand the information relevant to the decision
 And
 2. Retain the information
 And
 3. Use or weigh up the information to arrive at a choice
 And
 4. Be able to communicate the decision

When should Capacity be assessed?
 The assessment should take place when the capacity is in

doubt
 The assessor should be able to justify their conclusions,
 “Carers need to take reasonable steps to establish that the
person lacks capacity…… They must also establish that the Act
or Decision is in the persons best interests

Best Interests
 Having determined that a person lacks capacity best interests underpin our
actions and interventions: To make a best interest decision;
 1. Consider all of the relevant circumstances
 And
 2. Consider whether there is likely that the person may have capacity in
some time in the future to the matter in question. Could this decision be
delayed so that the person can make the decision themselves?
 And
 3. Encourage, as far it is reasonably practicable, the person to participate in
any action undertaken for him in any decision affecting him. Even where
the person lacks capacity, they should not be excluded from the decision
making process.

Best interests
 And
 4. Not be motivated by the desire to bring about the persons death

when the decision relates to life sustaining treatments.
 And
 5. Consider the persons past and present wishes and feelings.
 And
 6. consider any relevant written statements made when the person

had capacity

Best interests
 And
 7. consider the beliefs and values that would be likley to influence the
persons decision, for example religious, Cultural and lifestyle choices.
 And
 8. take into account other factors the person would be likely to consider if
he or she were able to do so
 And
 9. Consult and take account the views other key people as to what would
be in the persons best interests including; Anyone interested in his or her
welfare (Family, Friends, Informal Carers, other professionals) or any LPA or
Deputy appointed by the court of protection.

Lasting Power of Attorney (LPA)

 Under an LPA an individual can, while they still have capacity,
appoint another person to make decisions on their behalf about
financial, welfare or healthcare matters.
 The person making the LPA chooses who will be their attorney. They
can allow the attorney to make all decisions or they can choose
which decisions they can make.
 If in the event an individual is assessed in lacking capacity. Their LPA

has to register this with the Office of the public guardian.
 Once this has been officially registered they are now able to legally
make decisions of their appointed individual, whether this be
healthcare decisions, Finance or both.

Advance Decisions
 An Advance decision is decision that has been made by an

individual whilst they have capacity to make decisions.
 An individual can ensure that decisions relating to health,
refusal of treatments and care as well as finances are taken
into consideration and enforced.
 A person can refuse treatments when they are over the age of
18. However the treatment must be clearly described in none
medical terms so that the person can understand and make
better decisions

Court of Protection
 Is a specialist court with powers to deal with matters affecting adults who
may lack capacity to make particular decisions. The Court is able to hear
cases at a number of locations in England and Wales. It covers all areas of
decision making under the MCA and can determine whether a person has
capacity in relation to a particular decision,
 whether a proposed action would be lawful, whether a particular act or

decision is in a person’s best interests and the meaning or effect of an LPA
in disputed cases. The Court of Protection plans to be an accessible,
regional court. It aims to be informal and quick. It takes over the duties of
the former Court of Protection and matters regarding healthcare and
personal welfare, dealt with by the High Court.
 The Court of Protection will only be involved where particularly complex

decisions or difficult disputes are involved.

Court Appointed Deputy
Court-appointed deputies are professionals or people

(or a trust corporation in property and affairs cases)
appointed by the Court of Protection to make
decisions on behalf of an incapacitated adult in their
best interests.
This would take place, for example, where there is a
serious dispute among carers

Public Guardian
 The MCA creates a new public office – the Public Guardian – with a range of
functions that contribute to the protection of people who lack capacity.
These functions include:
 •keeping a register of Lasting Powers of Attorney and Enduring Powers of

Attorney
 •monitoring attorneys receiving reports from attorneys and deputies

keeping a register of orders appointing deputies
 •supervising deputies appointed by the Court directing Court of Protection

visitors providing reports to the Court dealing with enquiries and
complaints about the way deputies or attorneys use their powers working
closely with other agencies to prevent abuse.

Raising Concerns or Complaints!
 The Court of Protection only deals with complaints when all other
avenues have been tried.
 So if a care worker, for example, wants to complain that she has

been asked to do something that seems to be against the Act,
He/she can contact the Office of the Public Guardian, He/ she can
use whistle-blowing procedures or contact the local adult protection
service (via the local authority)or the Commission for Social Care
Inspection or the Care Standards Inspectorate in Wales.
 Other sources of help include telephone advice from the Action on

Elder Abuse helpline or Witness:

Independent Mental Capacity

Advocate (IMCA)
 The Mental Capacity Act 2005 (MCA) introduces a duty on the NHS
and local authorities to involve an independent mental capacity
advocate (IMCA) in certain decisions.
 This ensures that, when a person who lacks capacity to make a
decision has no one who can speak for them and serious medical
treatment or a move into accommodation arranged by the local
authority or NHS body (following an assessment under the NHS and
Community Care Act 1990)
 The IMCA has a specific role to play in supporting and representing a
person who lacks capacity to make the decision in question. They
are only able to act for people whose care or treatment is arranged
by a local authority or the NHS.

Deprivation of Liberty Safeguards

(DoLS)
 What do we mean by depriving someone of the liberty?
 The Human Rights convention says that every person has the right to
liberty.
 Liberty means being free to do the things you want to do and live
where you want to live.
 Deprivation of liberty means to take someone’s freedom away.
 The Deprivation of Liberty Safeguards came into force on 1 April

2009 under amendments to the Mental Capacity Act 2005.

What is a Deprivation of Liberty?

 When someone lacks mental capacity to consent to care or treatment, it is
sometimes necessary to deprive them of their liberty in their best interests,
to protect them from harm.
 The safeguards are intended to protect people who lack mental capacity
from being detained when this is not in their best interests; to prevent
arbitrary detention; and to give people the right to challenge a decision.
 The legislation sets out a procedure for care homes and hospitals to obtain
authorisation to deprive someone of their liberty. Without that
authorisation the deprivation of liberty will be unlawful. These safeguards
are intended to protect individuals from being deprived of their liberty
unless it is in their best interests to protect them from harm and there is no
other less restrictive alternative.

Who do the safeguards apply to?

 The safeguards apply to:
 people in hospitals;
 people in care homes.
 Both self-funded and publicly funded residents are covered by the

safeguards.
 For people being cared for somewhere other than a care home or hospital,
deprivation of liberty will only be lawful with an order from the Court of
Protection. See section 9 for related guidance on DoLS and private
individuals and section 3.2 on domestic settings.
 The Deprivation of Liberty Safeguards should not be used if a person meets
the criteria for detention under the Mental Health Act 1983.

Who is responsible for applying the

safeguards?
 It is the responsibility of the care home or hospital (known as
the ‘managing authority’) to ensure that any deprivation of
liberty is lawful. If someone is identified as being deprived of
their liberty, or at risk of being deprived of their liberty, the
managing authority (the hospital or care home managers)
must consider whether:
 it is in the person’s best interests and necessary to protect
them from harm;
 there are alternative, less restrictive care regimes that do not
amount to deprivation of liberty.

Continued
 If it is believed to be in the person’s best interests and a less
restrictive regime is not possible, the hospital or care home
managers must apply to the supervisory body for authorisation of
the deprivation of liberty.
 The supervisory body is the local authority (for a person in a care

home) This would be the Social Services Adult Safeguarding Units.
 If there is any uncertainty as to whether the care regime amounts to

a deprivation of liberty then the managing authority should apply
for authorisation.
 An assessment will then be carried out to ascertain whether or not

the person needs to be deprived of their liberty to keep them safe

When considering a DoL !
 Authorisation of deprivation of liberty should be seen as a last

resort; less restrictive alternatives that do not amount to
deprivation of liberty should be put in place wherever
possible.
 Authorisation should never be used simply for the
convenience of staff or carers.

What amounts to deprivation of liberty?
 Restraint is used, including sedation, to admit a person to an institution where

that person is resisting admission.
 Staff exercise complete and effective control over the care and movement of a
person for a significant period.
 Staff exercise control over assessments, treatment, contacts and residence.
 A decision has been taken by the institution that the person will not be
released into the care of others, or permitted to live elsewhere, unless the staff
in the institution consider it appropriate.
 A request by carers for a person to be discharged to their care is refused.
 The person is unable to maintain social contacts because of restrictions
 placed on their access to other people.
 The person loses autonomy because they are under continuous supervision
and control.

What is Restraint?
 Restraint is the use, or threat, of force to enable something to
be done which the person is resisting; or the restriction of the
person’s movement (whether or not they resist). This is different
to deprivation of liberty. The Mental Capacity Act authorises
someone providing care or treatment to someone lacking
capacity to consent to it to use restraint if:
 they reasonably believe it is in the person’s best interests;
 they believe it is necessary to prevent harm to the person;
 it is proportionate to the likelihood and seriousness of the harm.

Who Assess?
 There will be a minimum of two assessors because the mental health and
best interests assessments must be carried out by different people. Ideally,
the assessment procedure would not involve a series of different
interviews by different assessors because that might cause unnecessary
stress or disruption to the person being assessed.
 The best interests assessor can be an employee of the supervisory body or

the managing authority, but must not be involved in the care or treatment
of the person. There will sometimes be situations where the managing
authority and the supervisory body are the same organisation, for example
when a care home is run by a local authority. In this case the best interests
assessor must not be an employee of that authority; an independent
assessor must be appointed.

In Conclusion
The Mental Capacity act was put in place to protect

people.
If you have doubts or concerns and have further
questions. This should be forwarded to the care
manager or the Adult Safeguarding Unit at the
particular authority area concerned.

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North East & Yorkshire Healthcare Service

Mental Capacity Act

Including Deprivation of Liberty

Aims & Objectives

 What is Mental Capacity ?

 The acts and main principles

 Assessing Capacity and making best interest Decisions

 Discuss terminologies of the Act

Working together to achieve more…. www.neyhs.org.uk

Working together to achieve more…. www.neyhs.org.uk

 This could be:

 Decisions about and individuals daily living

 Decisions surrounding domiciliary care

 Decisions that may have legal consequences

 For example to refuse medical treatment, their finances including their

Working together to achieve more…. www.neyhs.org.uk

What are the acts main principles S1

 A person must be assumed to have capacity unless proven otherwise.

Working together to achieve more…. www.neyhs.org.uk

The definition of Lack of Capacity S2

…. A person lacks capacity in relation to a matter if at

Working together to achieve more…. www.neyhs.org.uk

 Anyone who claims that an individual lacks capacity

Working together to achieve more…. www.neyhs.org.uk

The functional test of Capacity

 To have capacity the person must:

 1. Understand the information relevant to the decision

 2. Retain the information

 3. Use or weigh up the information to arrive at a choice

 4. Be able to communicate the decision

Working together to achieve more…. www.neyhs.org.uk

When should Capacity be assessed?

 The assessment should take place when the capacity is in

Working together to achieve more…. www.neyhs.org.uk

Working together to achieve more…. www.neyhs.org.uk

 4. Not be motivated by the desire to bring about the persons death

 5. Consider the persons past and present wishes and feelings.

 6. consider any relevant written statements made when the person

Working together to achieve more…. www.neyhs.org.uk

Working together to achieve more…. www.neyhs.org.uk

Lasting Power of Attorney (LPA)

 If in the event an individual is assessed in lacking capacity. Their LPA

Working together to achieve more…. www.neyhs.org.uk

 An Advance decision is decision that has been made by an

Working together to achieve more…. www.neyhs.org.uk

 whether a proposed action would be lawful, whether a particular act or

 The Court of Protection will only be involved where particularly complex

Working together to achieve more…. www.neyhs.org.uk

Court Appointed Deputy

Court-appointed deputies are professionals or people

Working together to achieve more…. www.neyhs.org.uk

 •keeping a register of Lasting Powers of Attorney and Enduring Powers of

 •monitoring attorneys receiving reports from attorneys and deputies

 •supervising deputies appointed by the Court directing Court of Protection

Working together to achieve more…. www.neyhs.org.uk

Raising Concerns or Complaints!

 So if a care worker, for example, wants to complain that she has

 Other sources of help include telephone advice from the Action on

Working together to achieve more…. www.neyhs.org.uk

Independent Mental Capacity

Working together to achieve more…. www.neyhs.org.uk

Deprivation of Liberty Safeguards

 Deprivation of liberty means to take someone’s freedom away.

 The Deprivation of Liberty Safeguards came into force on 1 April