The Mental Capacity Act 2005 came into force on 1st October 2007. The Act makes provision for those lacking mental capacity to make their own decisions to be afforded the empowerment to be involved as much as possible in the decision making process.
A new Court of Protection was also established to protect the best interests of people who lack mental capacity. The Court of Protection makes decisions about those who lack capacity to decide for themselves (such as where they should live and how they should receive their treatment) by applying the principles laid out in the Mental Capacity Act.
New Deprivation of Liberty Safeguards (DoLs) were introduced in April 2009 and gave new protection for people lacking capacity in situations where they have been deprived of liberty (for example in a situation where someone is kept from leaving a hospital or a care home, this must be shown to be in the person’s best interests).
At Chilcotts Law we specialise in assisting family members of vulnerable adults who are deemed to lack capacity to make decisions for themselves, as well as acting for the person lacking capacity through their litigation friend.
It is not nice to think that when we lose the mental capacity to make decisions for ourselves, that someone else has the responsibility of making those decisions for us – where we live, who we can see and when we can go out. It is becoming a more common scenario that if we cannot look after ourselves we may be taken into a care home setting where there may be a number of restrictions that are placed upon us. Sometimes, those restrictions can amount to a deprivation of a person’s liberty. If that is the case, then there is a clear and formal procedure that must be followed.
A person can be deprived of their liberty if, they lack the capacity to make decisions for themselves about where they should live, who they should have contact with and whether they should go out on their own. Most commonly, this applies to people who reside in care home type placements or in a hospital setting.
A Deprivation of Liberty Safeguards (DoLS) procedure must be instigated by the Local Authority (or NHS trust if it is a hospital) to authorise such a deprivation. If a person is in a supported living setting then the Local Authority will need to apply to the Court of Protection to obtain authority to deprive someone of their liberty. They cannot authorise the deprivation themselves. If they have not done so, then the person they are depriving of their liberty is being deprived unlawfully.
If you are a relative or carer of the person in that setting, then the Local Authority are also under an obligation to consult with you about the deprivation, so that you have the opportunity to exercise an appeal against it if you feel this is the right thing to do. It is also good practice to have regular meetings to see if the person being deprived of their liberty continues to lack capacity and if so, whether it is necessary for the deprivation to continue.
At Chilcotts Law, we can offer advice in relation to the procedure that must be followed including the consultation with relatives. We can also provide assistance and representation in challenging the deprivation of liberty and attend Best Interest Meetings.
The five principles of the Mental Capacity Act 2005
The Mental Capacity Act sets out five main principles to be followed in dealing with people who may be considered to have lost the capacity to make decisions for themselves. The emphasis is on ensuring that all actions are as unrestrictive as possible and that the maximum effort is made to help a person who lacks capacity to make their own decisions where it is practicable. The principles of the Act are as follows:
1. A person must be assumed to have capacity unless it is established that he lacks capacity
The Mental Capacity Act sets out a test for assessing someone’s mental capacity to take a decision. The test is ‘decision-specific’, which means the test is of whether the person can make the decision that needs to be made at the time it needs to be made. Incapacity can’t be assumed from someone’s diagnosis or behaviour. To be able to make a decision, someone has to be able to:
- Understand and retain information relevant to the decision
- Use the information in making the decision, which might include weighing options
- Communicate their decision – this doesn’t have to be verbal communication: it could include other means of communication, such as signing or writing things down.
2. 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
The Mental Capacity Act 2005 sets out that nobody can take a decision on behalf of someone who lacks capacity without first doing everything practicable to help them to decide for themselves. This might include things like using simple language or other methods to help the person understand, retain and use the information needed to make the decision.
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision
It is important to recognise the difference between incapacity and having made a bad or unwise decision, which everyone does now and again. Having the capacity to make a decision goes hand in hand with the possibility that the decision made may not be one that all around us agree with.
4. An act done, or decision made, under this Act for on behalf of a person who lacks capacity must be done, or made, in his best interests
The Mental Capacity Act lists the factors that decision makers are required to work through, in order to make a decision in a person’s best interests. These include taking consideration of the person’s wishes and feelings and their values and beliefs, so far as they can be known, as well as consulting with others involved in the person’s care.
A person may make a written statement about their wishes, feelings, beliefs and values prior to losing mental capacity and this is something the decision maker would be expected to take into consideration when making a decision in the person’s best interests.
5. Before the act is done, or the 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.
The Mental Capacity Act 2005 protects the interests of those who lack capacity, and this includes safeguards against imposing restrictions upon people lacking capacity where there are other options. In April 2009 a range of Deprivation of Liberty Safeguards (DoLS) were introduced that protect people lacking capacity from being deprived of liberty without the authorisation of a ‘supervisory body’ – a Local Authority or Health Trust depending on whether the person is in a care home or a hospital.