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What are the implications of COVID-19 for DoLS?

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What are the implications of COVID-19 for DoLS?

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There is a new, shorter application form which can be used for urgent DoLS authorisations.

Unless care regimes are more restrictive as a result of the pandemic, it is likely that any existing DoLS authorisations will be sufficient for care given during the crisis.

A reminder that life-saving treatment in a care home or hospital does not require a DoLS authorisation, providing the same treatment would be given to a person without a mental disorder. This applies to COVID-19 as it does to any other condition.

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Accredited training, consultancy, research and resources for the social care and health sectors from independent charity and improvement agency, the Social Care Institute for Excellence.

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Guidance for health and social care staff who are caring for, or treating, a person who lacks the relevant mental capacity ( Published 2020)

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Guidance for health and social care staff who are caring for, or treating, a person who lacks the relevant mental capacity.

Details

This emergency guidance is for health and social care staff in England and Wales who are caring for, or treating, a person who lacks the relevant mental capacity during the coronavirus outbreak.

The guidance ensures that decision makers are clear about the steps they need to take during this period. It focuses on new scenarios and potential 'deprivations of liberty' created by the outbreak.

During the outbreak, the principles of the Mental Capacity Act 2005 (MCA) and the safeguards provided by the deprivation of liberty safeguards (DoLS) still apply.

The MCA provides protection for people who lack or may lack the relevant mental capacity to make decisions about different aspects of their life.

The DoLS are an important part of this act and provide further safeguards for those who need to be deprived of their liberty in order to receive care or treatment in a care home or hospital, but do not have the capacity to consent to those arrangements.

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Coronavirus (COVID-19): looking after people who lack mental capacity

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We use cookies to collect information about how you use GOV.UK. We use this information to make the website work as well as possible and improve government services. Guidance for health and social care staff who are caring for, or treating, a person who lacks the relevant mental capacity.

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A framework to support the planning and organisation of adult social care during the coronavirus (COVID-19) outbreak.

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A framework to support the planning and organisation of adult social care during the coronavirus (COVID-19) outbreak.

Documents

Details

Guidance on ethical considerations for local authorities and adult social care professionals planning their response to COVID-19.

This guidance may be reviewed and updated as the outbreak develops and subsequent guidance may be issued to support its application.

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COVID-19: ethical framework for adult social care

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We use cookies to collect information about how you use GOV.UK. We use this information to make the website work as well as possible and improve government services. A framework to support the planning and organisation of adult social care during the coronavirus (COVID-19) outbreak.

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The coronavirus pandemic has the potential to cause harm to, and even the death of, a wide range of people. We also know that those most at risk from COVID-19 – older people, and people with existing long-term health conditions – are likely to be over-represented in the group of people whose rights and freedoms are protected by the Mental Capacity Act (MCA) 2005.

The MCA still applies, and the five principles on which it is based are as important as ever:

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Social Care Institute for Excellence (SCIE)

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Key messages

The Deprivation of Liberty Safeguards are an amendment to the Mental Capacity Act 2005. They apply in England and Wales only.

The Mental Capacity Act allows some restraint and restrictions to be used - but only if they are in a person's best interests and necessary and proportionate.

Extra safeguards are needed if the restrictions and restraint used will deprive a person of their liberty. These are called the Deprivation of Liberty Safeguards.

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.

Care homes or hospitals must ask a local authority if they can deprive a person of their liberty. This is called requesting a standard authorisation.

There are six assessments which have to take place before a standard authorisation can be given.

If a standard authorisation is given, one key safeguard is that the person has someone appointed with legal powers to represent them. This is called the relevant person's representative and will usually be a family member or friend.

Other safeguards include rights to challenge authorisations in the Court of Protection, and access to Independent Mental Capacity Advocates (IMCAs).

Liberty Protection Safeguards (LPS): In July 2018, the Government published a Mental Capacity (Amendment) Bill which will see DoLS replaced by the Liberty Protection Safeguards (LPS). Under LPS, there will be a streamlined process for authorising deprivations of liberty. Until LPS is fully implemented the current process remains. Read more: Liberty Protection Safeguards.

What is a deprivation of liberty?

Article 5 of the Human Rights Act states that '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 Deprivation of Liberty Safeguards (DoLS) is the procedure prescribed in law when it is necessary to deprive of their liberty a resident or patient who lacks capacity to consent to their care and treatment in order to keep them safe from harm.

A Supreme Court judgement in March 2014 made reference to the 'acid test' to see whether a person is being deprived of their liberty, which consisted of two questions:

Is the person subject to continuous supervision and control? and

Is the person free to leave? (permanently) - with the focus, the Law Society advises us, being not on whether a person seems to be wanting to leave, but on how those who support them would react if they did want to leave.

If someone is subject to a high level of supervision, and is not free to leave the premises permanently, then it is almost certain that they are being deprived of their liberty. Each case must be considered on its own merits, but in addition to the two 'acid test' questions, if the following features are present, you must request the completion of assessments for a deprivation of liberty authorisation:

frequent use of sedation/medication to control behaviour

regular use of physical restraint to control behaviour

the person concerned objects verbally or physically to the restriction and/or restraint

objections from family and/or friends to the restriction or restraint

the person is confined to a particular part of the establishment in which they are being cared for

the placement is potentially unstable

possible challenge to the restriction and restraint being proposed to the Court of Protection or the Ombudsman, or a letter of complaint or a solicitor's letter

the person is already subject to a deprivation of liberty authorisation which is about to expire.

Restraint and restrictions

The Mental Capacity Act allows restrictions and restraint in some cases to be used in a person's support, but only if they are in the best interests of a person who lacks capacity to make the decision themselves and only if it is necessary and proportionate to do so. The urgency of the situation would be part of the consideration of whether to apply a short term restraint or restriction, to provide care or treatment, for example.

Final decisions about what amounts to a deprivation of liberty are made by courts. The Code of Practice for the Deprivation of Liberty Safeguards (DoLS) gives examples of where courts have found people being and not being deprived of their liberty. These examples, together with other cases which have gone to the courts, should be used as a guide.

When care providers are putting together the care plans for people who are unable to make decisions about their care or where they live, they should consider whether any restrictions or restraint being proposed, in the best interests of the person, amount to a deprivation of liberty.

Practice example

Ben has learning disabilities and Prader-Willi syndrome. There are concerns about his health because his weight has been increasing steadily and now stands at 120kg.

Staff in his residential home have tried to support Ben to limit what he eats and to make healthy choices but with little effect.

Ben has been assessed as lacking capacity to make decisions about the amount and type of food he eats (this is common among people with Prader-Willi syndrome). It has been proposed that it is in Ben's best interests to stop him going into the kitchen, and always supervising him when out, to prevent him spending all his money on, or stealing, food. An application is made by the home manager for standard authorisation because they believe that the restrictions would deprive Ben of his liberty.

How is deprivation of liberty authorised under DoLS?

The Deprivation of Liberty Safeguards (DoLS) can only apply to people who are in a care home or hospital. This includes where there are plans to move a person to a care home or hospital where they may be deprived of their liberty. The care home or hospital is called the managing authority in the DoLS. Where a managing authority thinks it needs to deprive someone of their liberty they have to ask for this to be authorised by a supervisory body. They can do this up to 28 days in advance of when they plan to deprive the person of their liberty.

For care homes and hospitals the supervisory body is the local authority where the person is ordinarily resident. Usually this will be the local authority where the care home is located unless the person is funded by a different local authority.

The managing authority must fill out a form requesting a standard authorisation. This is sent to the supervisory body which has to decide within 21 days whether the person can be deprived of their liberty.

The supervisory body appoints assessors to see if the conditions are met to allow the person to be deprived of their liberty under the safeguards. They include:

The person is 18 or over (different safeguards currently apply for children).

The person is suffering from a mental disorder (recognised by the Mental Health Act).

The person lacks capacity to decide for themselves about the restrictions which are proposed so they can receive the necessary care and treatment.

The restrictions would deprive the person of their liberty.

The proposed restrictions would be in the person's best interests.

Whether the person should instead be considered for detention under the Mental Health Act.

There is no valid advance decision to refuse treatment or support that would be overridden by any DoLS process.

Whether a person who holds Lasting Power of Attorney (LPA) for Health and Welfare agrees with a DoLS authorisation (no refusals).

If any of the conditions are not met, deprivation of liberty cannot be authorised. This may mean that the care home or hospital has to change its care plan so that the person can be supported in a less restrictive way. There may be also be a need to consider asking the Court of Protection to look at the Deprivation of Liberty, supervisory bodies must seek legal advice in these cases.

If all conditions are met, the supervisory body must authorise the deprivation of liberty and inform the person and managing authority in writing. It can be authorised for up to one year.

The person does not have to be deprived of their liberty for the duration of the authorisation. The restrictions should stop as soon as they are no longer required.

Conditions on the standard authorisation can be set by the supervisory body. These must be followed by the managing authority.

Standard authorisations cannot be extended. If it is felt that a person still needs to be deprived of their liberty at the end of an authorisation, the managing authority must request another standard authorisation (or renewal).

Practice example

Claire has an acquired brain injury. Her GP has referred her to the local hospital for a minor operation on her foot. The doctor assessed Claire as lacking capacity to make the treatment decision herself and so after consulting Claire's mother is proposing that it is in her best interests to have the surgery. From past experience it is known that Claire will need to be sedated throughout her stay in hospital.

This is to stop her removing the dressing and picking at the wound. On the advice of the GP, the hospital makes an application for a standard authorisation for the use of sedation which is granted before she is admitted.

Urgent authorisations

A person may need to be deprived of their liberty before the supervisory body can respond to a request for a standard authorisation. In these situations the managing authority can use an urgent authorisation. Urgent authorisations are granted by the managing authority itself. There is a form that they have to complete and send to the supervisory body.

The managing authority can deprive a person of their liberty for up to seven days using an urgent authorisation. It can only be extended (for up to a further seven days) if the supervisory body agrees to a request made by the managing authority to do this.

When using an urgent authorisation the managing authority must also make a request for a standard authorisation. The managing authority must have a reasonable belief that a standard authorisation would be granted if using an urgent authorisation.

Before granting an urgent authorisation, the managing authority should try to speak to the family, friends and carers of the person. Their knowledge of the person could mean that deprivation of liberty can be avoided. The managing authority should make a record of their efforts to consult others.

Practice example

Brian has been living in a nursing home for the past three years. Recently he has become very agitated and distressed which is thought to be linked to his dementia. He tells people he wants to go home not remembering that he had to give his flat up when he moved into the home. He also spends a lot of time trying to open the front door which has a key pad lock on. An incident has occurred where he climbed out of his ground floor bedroom window and was only found a couple of hours later on a main road. The nursing home asks the local authority for a standard authorisation. They want to continue to use the key code so that Brian does not go out unaccompanied, and to put safety locks on some of the windows. Because of the seriousness of the recent incident, the home manager completes the form for the urgent authorisation and arranges the window locks to be fitted the same day.

Safeguards for people who may be deprived of their liberty

The first safeguard is the assessment process for a standard authorisation which involves at least two independent assessors who must have received training for their role. There will always be one mental health assessor and one best interests assessor who will stop deprivation of liberty being authorised if they do not think all the conditions are met.

Family, friends and paid carers who know the person well should be consulted as part of the assessment process. They may have suggestions about how the person can be supported without having to deprive them of their liberty. Those people who don't have family or friends who can represent them have a right to the support of an Independent Mental Capacity Advocate (IMCA) during the assessment process. And at all times, the fifth principle of the Mental Capacity Act, that any decision made in a person's best interests must be the least restrictive of their rights and freedoms, should be borne in mind.

If the person has an unpaid relevant person's representative following an authorisation, both they and their representative are entitled to the support of an Independent Mental Capacity Advocate.

If standard authorisation is granted the following safeguards are available:

The person must be appointed a relevant person's representative as soon as possible. Usually this will be a family member or friend who agrees to take this role. If there is no one willing or able to take this role on an unpaid basis, the supervisory body must pay someone, such as an advocate, to do this.

The person and their representative can require the authorisation to be reviewed at any time, to see whether the criteria to deprive the person of their liberty are still met, and if so whether any conditions need to change.

The person and their relevant person's representative have a right to challenge the deprivation of liberty in the Court of Protection at any time.

If the person has an unpaid relevant person's representative, both they and their representative are entitled to the support of an IMCA. It is good practice for supervisory bodies to arrange for an IMCA to explain their role directly to both when a new authorisation has been granted.

The home or hospital should do all it reasonably can to explain to a detained person and their family what their rights of appeal are and give support.

When DoLS cannot be used

The Deprivation of Liberty Safeguards (DoLS) can only be used if a person is in hospital or a care home. If a person is living in another setting, including in supported living or their own home, it is still possible to deprive the person of their liberty in their best interests, via an application to the Court of Protection.

If a person is in hospital they should not be subject to the DoLS if they meet the criteria for detention under the Mental Health Act.

The DoLS should not be used if the main reason is to restrict contact with individuals who may cause the person harm. If it is believed to be in a person's best interests to limit contact an application should be made to the Court of Protection.

DoLS should also not be used if the sole purpose of the restrictions are to protect other people, the safeguards are for the individual.

If there is a dispute about where a person should stay, an authorisation does not resolve the dispute. The Code of Practice of the Mental Capacity Act says that unresolved disputes about residence, including the person themselves disagreeing, should be referred to the Court of Protection.

Practice example

The local authority is following safeguarding proceedings for Mavis, a woman with dementia who is currently living at home with her husband. They are concerned her needs are not being met because her husband is refusing the support that is being offered. It is believed that he has untreated mental health needs. Mavis was assessed as lacking capacity to decide on her residence, though clearly communicates a wish to remain in her own home.

It has been proposed that a placement in a care home would be in Mavis's best interests. It is also believed that in the care home she will need a high level of restrictions to give her appropriate care and treatment.

Because the move is against Mavis's wishes and those of her husband, the local authority makes a fast-track application to the Court of Protection to make a decision in her best interests. If the court authorises a move to the care home, an application will be made by the home for a standard authorisation under the DoLS.

Deprivation of liberty without authorisation

If you are working in a care home or hospital where you think a person is being deprived of their liberty, you should see if care could be provided in a less restrictive way. If depriving the person of their liberty seems unavoidable, an application should be made for a standard authorisation at the same time as an urgent authorisation is given.

If you come across someone in another setting who may be deprived of their liberty you should bring this to the attention of the manager so they either change their care or seek authorisation. Other options are to inform the supervisory body, to make a safeguarding alert to the local authority, or to challenge what may be an unlawful deprivation of liberty in the Court of Protection.

Other information

If a care/nursing home or hospital makes an application to a local authority for a deprivation of liberty authorisation, it must inform the Care Quality Commission, once the outcome of the application is known. CQC provides a form for this purpose. Similarly, if a supported living, shared lives or other community provider requests an authorisation of a deprivation of liberty from the Court of Protection, the CQC must be informed once the outcome is known, using the same form. (Download CQC statutory notification: Application to deprive a person of their liberty and its outcome)

Liberty Protection Safeguards

In July 2018, the government published a Mental Capacity (Amendment) Bill which will see DoLS replaced by the Liberty Protection Safeguards (LPS). This passed into law in May 2019. Under LPS, there will be a streamlined process to authorise deprivations of liberty. Read more here: Liberty Protection Safeguards.

Download

All SCIE resources are free to download, however to access the following download you will need a free MySCIE account:

Available downloads:

Deprivation of Liberty Safeguards (DoLS) at a glance

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Deprivation of Liberty Safeguards at a glance

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Information about the Deprivation of Liberty Safeguards (DOLS) - an amendment to the Mental Capacity Act 2005 (MCA).

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Cheshire West (case law):  The Acid Test:

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Cheshire West (case law):  The Acid Test:

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http://www.39essex.com/docs/newsletters/deprivation_of_liberty_after_cheshire_west_-_a_guide_for_front-line_staff.pdf

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In July 2018, the government published a Mental Capacity (Amendment) Bill, which passed into law in May 2019. It replaces the Deprivation of Liberty Safeguards (DoLS) with a scheme known as the Liberty Protection Safeguards (although the term is not used in the Bill itself).

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Accredited training, consultancy, research and resources for the social care and health sectors from independent charity and improvement agency, the Social Care Institute for Excellence.

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•A man with learning disabilities was deprived of his liberty

https://www.youtube.com/watch?v=pz5Ecovjs4w

Consequently:

•High Court

•European Court of Human Rights

Freedom can legally be taken away if:

•Mental capacity has been assessed and the assessment demonstrates a lack of capacity

•Restraint may be used to prevent harm, must be legally proven to be necessary

•There are many DoLS issues to be considered  and decisions that restrict a person’s autonomy must be considered and legally justified

•The difference in practice between “least restrictive” and “deprivation” might be difficult to judge

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Human Rights Inquiry case study - The 'Bournewood' ruling

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Rights for vulnerable people in the care system

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Rights for vulnerable people in the care system

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HL came to live with Mr and Mrs E in 1994, under a resettlement scheme from Bournewood hospital where he had lived for 32 years. With their children grown up, the couple had decided to open their home to someone who needed it. Looking after HL was no easy task: he cannot talk, and needs help with basic tasks like washing and dressing himself. Mrs E says: "It's fair to say that it was a challenge - but it was rewarding to see how much HL benefited from living in a family setting. At first he was very institutionalised, but he gradually became more confident and progressed beyond all expectations."

A requirement of his placement was that HL would attend a day centre once a week, to which he travelled by the centre's transport. On July 22nd 1997, three years after he had come to live with Mr and Mrs E, it was not the usual driver who collected from their home. Rather than taking him straight to the day centre as normal, the driver took a different route, collecting others on the way. HL became increasingly agitated.

The next thing Mr and Mrs E knew was that HL had been taken back into Bournewood hospital and detained there. He had been admitted informally, using a clause in the Mental Health Act 1983 under which the hospital simply had to argue that it was in his "best interests" - and as HL cannot speak, he was unable to object. Mr and Mrs E were not allowed to visit him, apparently in case he wanted to leave with them. "They sent us a letter thanking us for agreeing not to visit," says Mrs E. "We hadn't agreed anything - they had decided, without any consultation."

When Mr and Mrs E realised that HL was not going to be allowed home, they engaged a solicitor on his behalf and took a case for unlawful detention to the High Court, which ruled against him. The Appeal Court overturned the decision in October 1997, and the hospital chose to section HL, although he did not meet the criteria, and in December that year he was finally discharged by the hospital managers. "When he got home he was in a terrible state," says Mrs E. The couple have a video showing the abuses to which HL had been subjected in the hospital: he looks half-starved, with blackened toenails and scabs on his face. "When he came home he just ate and slept for three weeks."

Meanwhile, the hospital trust, supported by the Department of Health, appealed to the House of Lords over the ruling. The Mental Health Act Commission suggested that 22,000 people being detained informally would have to be detained formally under the Mental Health Act if the ruling were upheld. In 1998, the House of Lords overturned the ruling that HL's detention had been illegal. Mr and Mrs E decided to take the case to the European Court of Human Rights, which in October 2004 ruled in HL's favour. As a result the government introduced the new Deprivation of Liberty Safeguards, which came into force in April 2009.

The Deprivation of Liberty Safeguards provide extra protection for the human rights of people who lack capacity and find themselves deprived of their liberty. As well as people with learning difficulties and mental health conditions, this could apply to older people in care homes. The Safeguards provide a rigorous process by which health services have to prove that compulsory detention is the best solution for the individual concerned.

"These new guidelines are important because they provide a mechanism by which people can challenge the compulsory detention of people who are unable to speak for themselves," says Mr E. "The problem is that many families still don't know they exist, and as a result despite the large numbers of people detained informally very few authorisations have been applied for. The authorities are considering the human rights of vulnerable people more than they used to, but there is still a long way to go."

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HL came to live with Mr and Mrs E in 1994, under a resettlement scheme from Bournewood hospital where he had lived for 32 years. With their children grown up, the couple had decided to open their home to someone who needed it.

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Assessment to determine if an action (or decision) is in “Best interest”

•Not assume decision is based on age, appearance, condition (diagnosis) or behaviour

•Take account of personal opinions and beliefs

•Consider if decision can be postponed until person has capacity

•Involve person in the decision making

•Seek out views of others (perhaps family, friends, neighbours)

•Not be motivated by a wish to bring about the person’s death if the decision relates to life sustaining treatment

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•The person’s future capacity – capacity can fluctuate

•Their past, present wishes and feelings

•Beliefs and values likely to influence their decision

•Other factors that the person would be likely to consider

•

•No one can legally make best interest decisions arbitrarily

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•Presumption

•Support

•Unwise/ Eccentric

•Best Interest

•Least Restrictive

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https://www.nhs.uk/conditions/social-care-and-support-guide/making-decisions-for-someone-else/mental-capacity-act/

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Social Care Institute for Excellence (SCIE)

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The MCA focuses on an individual's right to make their own decisions, and assumes that a person has the capacity to make the decision ( principle 1). Every effort must be taken to encourage and support the person to make the decision for themselves ( principle 2). The MCA says that before anyone acts on behalf of someone who lacks capacity they must be able to demonstrate that the person lacks capacity.

To assist in answering the question of whether the person has capacity, you will need to check the following:

Does the individual have all the relevant information needed to make the decision?

If there is a choice of options, has information been provided on the alternatives?

Have the communication needs of the individual been taken into account? The information needs to be presented in a way that is easier for them to understand.

Have different communication methods been explored, including obtaining professional or carer support?

Consider the risks and benefits, including describing the consequences of making a decision, and making no decision.

Video case studies

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The MCA focuses on an individual's right to make their own decisions, and assumes that a person has the capacity to make the decision ( principle 1). Every effort must be taken to encourage and support the person to make the decision for themselves ( principle 2).

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Read the following statements and consider them in relation to principle one described below:

•“No one with dementia can look after any money”

•“All people with a learning disability lack capacity to make any decisions”

Incapacity cannot be simply based on:

•Appearance/ age/ gender/ condition/ diagnosis/ behaviour/ race…

•Incapacity to make other decisions

•An unwise decision

•Indecision

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" The Mental Capacity Act 2005 is a vitally important piece of legislation, and one that will make a real difference to the lives of people who may lack mental capacity. It will empower people to make decisions for themselves wherever possible, and protect people who lack capacity by providing a fl exible framework that places individuals at the very heart of the decision-making process. It will ensure that they participate as much as possible in any decisions made on their behalf, and that these are made in their best interests. It also allows people to plan ahead for a time in the future when they might lack the capacity, for any number of reasons, to make decisions for themselves. "
Lord Falconer

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•Human Rights

•Consent to care and treatment

•Assessing Capacity (Supported Decision Making)

•Best Interest Decision Making

•Restraints & Restrictions

•Deprivation of Liberty

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Which human right, gives you the right to make your own

choices ?

The ECHR protects your essential rights, including the

rights to:

Article 1  : Obligation to respect human rights

Article 2:   Right to life

Article 3:   Prohibition of torture

Article 4:   Prohibition of slavery and forced labour

Article 5:   Right to liberty and security

Article 6:   Right to a fair trial

Article 7:   No punishment without law

Article 8:   Right to respect for private and family life

Article 9:   Freedom of thought, conscience and religion

Article 10:  Freedom of expression

Article 11:  Freedom of assembly and association

Article 12:  Right to marry

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Consider the following:

When do you require consent from the people you support?

What support do you need to provide if consent is going to be valid?

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For all assessments of capacity or as we will call it ‘supported decision making’ you will use a two stage assessment.

1:  Does the individual have a condition that affects their cognition?

2:  Is this affecting their ability to make decisions?

Always remember:

Each decision may require assessment

Capacity may fluctuate

NB: a diagnosis does not assume capacity/or lack of

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•Does the person have a general understanding of what decision they need to make and why they need to make it?

•Does the person have a general understanding of the likely consequences of making, or not making, this decision?

• Is the person able to understand, retain, use and weigh up the information relevant to this decision?

•Can the person communicate their decision (by talking, using sign language or any other means)?

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Assessing capacity to make more complex or serious decisions 

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Assessing capacity to make more complex or serious decisions 

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Is there a need for a more thorough assessment (perhaps by involving a doctor or other professional expert)?

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To give valid consent or permission the person needs to have:

Information about the decision

Free choice to make the decision without being unreasonably pressured or forced

The Mental Capacity to be able to consent or refuse

To help someone to decide whether or not to consent we MUST EXPLAIN:

• why the care or treatment is needed

• the options available and what they entail.

• what is likely to happen if the person does consent

• what is likely to happen if the person refuses the care or treatment

We need to support the person on all occasions when their consent is required

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…the ability to make a decision about a particular matter at the time the decision needs to be made

MCA Code of Practice (2007)

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Why do we need a Mental Capacity Act and when can it be used?

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Why do we need a Mental Capacity Act and when can it be used?

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•It allows people to plan for their own future.

•Offers legal protection for carers.

•Avoids exploitation.

•When there is doubt about decision making abilities and decisions need to be made or actions take.

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•Governs all matters – health and financial

•Tries to assert autonomy

•Can help to put measures in place before capacity is impaired

•Seeks best interest

•Ensures advocacy – IMCA

•Safeguards carers

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•A person must be assumed to have capacity unless it is established that he/she lacks capacity

•A person is not to be treated as unable to make a decision unless all practicable steps to help him/her to do have been made without success

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

•An act done, or decision made, for or on behalf of the person who lacks capacity must be done, or made in the person’s best interest

•Before the act is done, or the decision 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 restricted of the personal’s rights and freedom of action

Brown et al (2015)

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

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Social Care Institute for Excellence (SCIE)

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Mental Capacity Act principle 2: Supported decision making

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•Protects and supports  people who do not or will not have the ability to make decisions for themselves  (covers those aged 16+ although there are exceptions)

•Recognises that capacity may be compromised by severe learning disability, dementia, acquired brain injury, long term substance use, stroke

•Empowers people to make as many decisions as possible for themselves both for now and in the future if capacity becomes compromised in the future

•Enables the individual to choose who can make future decisions for them if needed

•Advocacy – supports the work of the Independent Mental Capacity Advocate (IMCA)

•Offers carers legal support- liability

•Ensure decisions are “best interest”

•Your interventions for people need to be in their best interest not just “because”

•This is based on your judgement and understanding of reasonable

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“A person is not to be treated as unable to make a decision merely because he/she makes an unwise decision.”

https://www.youtube.com/watch?v=WbZWRiU9BSc

This video explains principle 3 of the Mental Capacity Act 2005. People have the right to make decisions that others might regard as unwise or eccentric. You cannot treat someone as lacking capacity for this reason. Everyone has their own values, beliefs and preferences which may not be the same as those of other people.

See also: SCIE's Mental Capacity Act resource http://bit.ly/1VzcD2q

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Best interests: •No one can legally make best interest decisions arbitrarily
Deciding Best Interests
•The person’s future capacity – capacity can fluctuate

•Their past, present wishes and feelings

•Beliefs and values likely to influence their decision

•Other factors that the person would be likely to consider

•https://www.youtube.com/watch?v=uEMV6s90p9s

•

•https://www.youtube.com/watch?v=A_V8neVcSUE

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Social Care Institute for Excellence (SCIE)

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It is important for the application of the MCA to have a fundamental understanding of the best interests principle.

If a person has been assessed as lacking capacity then any action taken, or any decision made for, or on behalf of that person, must be made in his or her best interests ( principle 4 ). The person who has to make the decision is known as the 'decision-maker' and normally will be the carer responsible for the day-to-day care, or a professional such as a doctor, nurse or social worker where decisions about treatment, care arrangements or accommodation need to be made.

What is 'best interests'?

The MCA provides a non-exhaustive checklist of factors that decision-makers must work through in deciding what is in a person's best interests.

Some of the factors to take into consideration are:

Do not discriminate. Do not make assumptions about someone's best interests merely on the basis of the person's age or appearance, condition or any aspect their behaviour.

Take into account all relevant circumstances

If faced with a particularly difficult or contentious decision, it is recommended that practitioners adopt a 'balance sheet' approach

Will the person regain capacity? If so, can the decision wait?

Involve the individual as fully as possible

Take into account the individual's past and present wishes and feelings, and any beliefs and values likely to have a bearing on the decision

Consult as far and as widely as possible.

Again, it is vital that you record your best interests decision. Not only is this good professional practice, but given the evidence-based approach required by the MCA, you will have an objective record should your decision or decision-making processes later be challenged.

For more detailed information you should refer to the Mental Capacity Act Code of Practice .

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Those most at risk from Covid-19 are likely to be over-represented in the group of people whose rights are protected by the Mental Capacity Act (MCA) 2005. This new resource covers the implications of the pandemic on the MCA.

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What do you think about SCIE's work?

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It is important for the application of the MCA to have a fundamental understanding of the best interests principle. If a person has been assessed as lacking capacity then any action taken, or any decision made for, or on behalf of that person, must be made in his or her best interests ( principle 4 ).

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Least Restrictive
If making a decision in the patients best interests you must always choose the least restrictive option.