11 March, 2019

The Mental Capacity Act and Deprivation of Liberty Safeguards

The primary purpose of the Mental Capacity Act (2005) is to promote and safeguard decision making within a legal framework.  It does this by empowering people to make decisions for themselves wherever possible.  It also protects people who lack capacity by providing a framework that places the person at the heart of the decision-making process.    The Act introduced five statutory principles which underpin all decisions taken when considering a person’s capacity:

·         A person must be assumed to have capacity unless it is established that he lacks capacity

·         A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success

·         A person is not to be treated as unable to make a decision merely because he makes an unwise decision

·         An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests

·         Before the act is done, or decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

In order to decide whether an individual has the capacity to make a particular decision you must first establish if a person has an impairment of or disturbance in the functioning of a person’s mind or brain.  If so, is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision.   A person is deemed unable to make a decision for himself if he is unable to:

·         To understand the information relevant to the decision

·         To retain that information

·         To use or weigh that information as part of the process of making the decision, or

·         To communicate his decision

The Mental Capacity Act allows restraint and restrictions to be used – but only if they are in a person’s best interests.  If these restrictions deprive a person of their liberty then a Deprivation of Liberty authorisation must be applied for.  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.  It is the responsibility of the care home to apply for a standard authorisation.

If you require any help and support in this area please do contact the Care Advice Centre on 07764480565.