The Trust has a robust approach to the implementation of the Mental Capacity Act 2005 and the associated Deprivation of Liberties Safeguards.
Mental Capacity Act
The Mental Capacity Act (MCA) is designed to protect and empower individuals aged 16 and over and help to safeguard the human rights of people who lack (or may lack) mental capacity to make decisions about their care and treatment This includes decisions about whether or not to consent to care or treatment. This may be because of a lifelong learning disability or a more recent short-term or long-term impairment resulting from injury or illness.
Examples of people who may lack capacity include those with:
- a severe learning disability
- a brain injury
- a mental health condition
- a stroke
- unconsciousness caused by an anaesthetic or sudden accident
However, just because a person has one of these conditions does not 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 says:
- Everyone has the right to make his or her own decisions. Health and care professionals should always assume an individual has the capacity to make a decision themselves, unless it is proved otherwise through a capacity assessment.
- Individuals must be given help to make a decision themselves. This might include, for example, providing the person with information in a format that is easier for them to understand.
- Just because someone makes what those caring for them consider to be an “unwise” decision, they should not be treated as lacking the capacity to make that decision. Everyone has the right to make their own life choices, where they have the capacity to do so.
- Where someone is judged not to have the capacity to make a specific decision (following a capacity assessment), that decision can be taken for them, but it must be in their best interests.
- Treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms possible, while still providing the required treatment and care.
The MCA also allows people to express their preferences for care and treatment in case they lack capacity to make these decisions. It also allows them to appoint a trusted person to make a decision on their behalf should they lack capacity in the future.
People should also 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.
Advance Decisions to Refuse Treatment (ADRT) website. This NHS website explains how the law allows people to make decisions to refuse treatments and has links to key resources. Available at www.adrtnhs.co.uk
https://www.gov.uk/government/collections/lasting-power-of-attorney-forms Department of Justice, Lasting Power of Attorney forms and guidance.
Deprivation of Liberty Safeguards
Deprivation of Liberty Safeguards are a part of the MCA and relate to people who are placed in care homes or hospitals for their care or treatment and who lack mental capacity.
The Deprivation of Liberty Safeguards are an amendment to the Mental Capacity Act 2005. They apply in England and Wales only.
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).
You can find out more about MCA on the NHS website .