MCA / DoLs

Mental Capacity Act (MCA)

The Mental Capacity Act (MCA) came into force in 2007, it is designed to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment. It applies to people aged 16 and over.

The Act covers decisions about day-to-day things like what to wear or what to buy for the weekly shop, or serious life-changing decisions like whether to move into a care home or have major surgery.

Examples of people who may lack capacity include those with:

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unconsciousness caused by an anaesthetic or sudden accident

But just because a person has one of these health conditions doesn’t necessarily mean they lack the capacity to make a specific decision.

Someone can lack capacity to make some decisions (for example, to decide on complex financial issues) but still have the capacity to make other decisions (for example, to decide what items to buy at the local shop).

The MCA has 5 main principles:

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assume a person has the capacity to make a decision themselves, unless it’s proved otherwise

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don’t treat a person as lacking the capacity to make a decision just because they make an unwise decision

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wherever possible, help people to make their own decisions

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any decisions made for someone who doesn’t have capacity must be in their best interests

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treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms

he MCA also allows people to express their preferences for care and treatment, and to appoint a trusted person to make a decision on their behalf should they lack capacity in the future.

People without anyone to represent them should be provided with an independent advocate, who will support them to make decisions in certain situations, such as serious treatment or where the individual might have significant restrictions placed on their freedom and rights in their best interests.

In order to decide whether an individual has the capacity to make a particular decision they must pass the 2 stage test:

  1. Is there an impairment of or disturbance in the functioning of a person’s mind or brain? If so,
  2. Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?

The MCA says that a person is unable to make their own decision if they cannot do one or more of the following four things:

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understand information given to them

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weigh up the information available to make the decision

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retain that information long enough to be able to make the decision

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communicate their decision – this could be by talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand.

Every effort should be made to find ways of communicating with someone before deciding that they lack capacity to make a decision based solely on their inability to communicate. Family, friends, carers or other professionals should be involved where appropriate.

Deprivation of Liberty Safeguards (DoLS)

Article 5 of the Human Rights Act states: “everyone has the right to liberty and security of person. No one shall be deprived of his or her liberty (unless) in accordance with a procedure prescribed in law.”

The Mental Capacity Act outlines how an individual can be deprived of their liberty in order to care for them safely, and Deprivation of Liberty Safeguards (or DoLS) are one such procedure prescribed in law that is invoked to protect the peoples and ensure their loss of liberty is lawful. Care should always be provided in the least restrictive way possible, and those responsible for providing care should explore all options. 

DoLS are an amendment to the Mental Capacity Act 2005 that applies in England and Wales and can only be applied in a care/nursing home or hospital setting.

An individual is deprived of their liberty for the purposes of Article 5 of the European Convention on Human Rights if they:

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lack the capacity to consent to their care/treatment arrangements 

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are not free to leave

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are under continuous supervision and control

There are six criteria that needs to be assessed before DoLS can be authorised by the local authority:

  1. Is the individual aged 18 years or above as required?
  2. Does the individual have a mental health disorder (this includes dementia)? 
  3. Does the individual have the capacity to make their own decisions regarding treatment? 
  4. Is the use of DoLS in the individual’s best interest? Namely, will it keep them safe from harm?
  5. Does the individual meet the requirements for detention under the Mental Health Act 1983? (This would make them ineligible for a standard authorisation)
  6. Has the individual made any advanced decisions about their treatment? Is there any previous authorisation that would conflict with the authorisation of DoLS?

Once a request for DoLS has been made, a decision must be made within 21 days as to whether the person can be deprived of their liberty. If authorisation is given, one key safeguard is a person is appointed with legal powers to represent the individual – this will usually be a family member or friend. Another important safeguard is access to independent mental capacity advocates.

DoLS provides a framework by which a challenge can be made through a review procedure or in the Court of Protection if the deprivation of liberty is perceived as unlawful.

To challenge a deprivation of liberty order, you can:

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appeal to the Court of Protection

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ask for a review of the authorisation

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get support from an independent mental capacity advocates (IMCA)

The Safeguarding Adult Boards across SET (Southend, Essex and Thurrock) have updated the Mental Capacity Act/Deprivation of Liberty Safeguards (MCA/DoLS) Policy and accompanying Guidance and Mental Capacity Assessment Form

If you provide care to someone who does not have capacity to consent to care and treatment in a care home or hospital and you believe the care provided meets the ‘acid test’ because the person is under continuous supervision and control AND is not free to leave, then a referral under the Deprivation of Liberty Safeguards is required.

Urgent Authorisation

You can request an Urgent Authorisation by:

bullet point Hand delivering forms to Southend-on-Sea Borough Council, Civic Centre, Victoria Avenue, Southend-on-Sea, Essex, SS2 6ER
bullet point Emailing them to Adult Social Services at [email protected] (files should be password protected)
bullet point Faxing them to 01702 534794

Standard Authorisation

You can request a Standard Authorisation by:

bullet point Emailing them to Adult Social Services at [email protected] (files should be password protected)
bullet point Faxing them to 01702 534794

Independent Mental Capacity Advocate (IMCA)

An IMCA is an advocate who has been specially trained to support people who are not able to make certain decisions for themselves, and do not have family or friends who are able to speak for them. IMCAs do not make decisions, and they are independent of the people who do make the decisions.

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Below are details of IMCA providers that are currently commissioned in Southend;

POhWER

POhWER

Website: pohwer.net
Telephone: 0300 456 237

Email: [email protected]
Write to: PO Box 14043, Birmingham, B6 9BL