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Mental Capacity Act and Deprivation of Liberty Safeguards

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1. Executive Summary

There had been concern about protecting a person’s rights when they become confused and unable to understand important decisions about their medical and social care. Professionals may appear to act paternalistically, and this has become less acceptable to the public. There has also been concern that a person’s rights may be abused by members of the family making decisions on their behalf but not necessarily in line with their own, perhaps previously expressed wishes. The legal basis for these decisions was weak, and yet geriatricians would frequently encounter such situations.

The Mental Capacity Act (2005) has provided clear legal procedures and a code of practice for these situations. In addition the Mental Health Act 2007, received Royal Assent in July 2007. That Act amended the Mental Capacity Act and introduced Deprivation of Liberty Safeguards ensuring scrutiny and the right of appeal in situations where a person may need to receive treatment or have actions taken in order to keep them safe which amounts to a deprivation of their liberty

Some details of how these procedures now operate are described below.

2. Mental Capacity Act 2005

The Mental Capacity Act 2005 provides a statutory framework to empower and protect vulnerable people who may not be able to make their own decisions. It makes clear who can make decisions in particular situations and how this should be dealt with. It also enables people to plan ahead for a time when they may lose capacity.

The whole Act is underpinned by a set of five key principles:

  1. A presumption of capacity: every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise.
  2. The right for individuals to be supported to make their own decisions: A person must be given all practicable help before anyone treats them as not being able to make their own decisions.
  3. Just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
  4. Best interests: Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.
  5. Least restrictive interventions: Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.

Assessment of capacity refers to 1-3 above, while 4 and 5 refer to acting for or making decisions on behalf of someone lacking capacity.

The Act works in a number of ways: protection of the individual, provision of powers and definition of duties.

If a person’s capacity is called into question, then this must be proven using the assessment set out in the legislation. If capacity is lacking then the Act sets out a mandatory procedure for decision making on their behalf (best interests) which is designed to replicate the decision the person would have made had they had capacity and takes into account the values and wishes of the individual. The Act contains a criminal offence that can be used for those who maltreat those lacking capacity. For the most vulnerable, an independent support service is provided (IMCA advocacy). The legislation provides a mechanism for decision making on behalf of people who lack capacity and by giving legal protection to staff acting on these decisions.

People who have capacity can plan ahead for when capacity becomes lacking and can assign another person to decide on their behalf if capacity is lost – lasting power of attorney. This can relate to financial decisions and/or health and social care decisions. People with capacity can record their wishes for future treatment using an advance decision. This relates in practice to decisions about withholding life prolonging treatment.  For those without capacity the Act provides a standard method for staff to make a best interests decision which should be acted upon.

Organisations providing health and social care for people who lack capacity need to ensure that policies and practices take account of the Act and that staff are conversant with the Act.

3. Definitions / Terminology

a. Mental Capacity

The ability to make decisions is called mental capacity. A person lacks capacity in relation to a matter if at the material time he/she is unable to make a decision for him/herself in relation to the matter because of an impairment of or a disturbance in functioning of the mind or brain. People may have difficulties making some decisions either all or some of the time.

This could be because they have:

  • dementia
  • a mental health problem
  • delirium
  • a brain injury or a stroke
  • learning disability

The Mental Capacity Act will affect people in these situations. It will also affect their families, carer’s, health and social care staff, and other people who may have contact with them. The Act covers all sorts of major decisions where a person may lack capacity for example social care, medical treatment and research arrangements, financial matters as well as everyday decisions on what to eat and what to wear.

Assessment of capacity

If all steps have been taken to help and support a person to make a decision and this has not resulted in the person being able to make that particular decision, then the person will need an assessment of capacity.

When an assessment of capacity must be made, it is vital to remember that the assessment of a person's capacity is decision specific and must be assessed in relation to the particular decision, at the time the decision needs to be made.  Any assessment undertaken on a person's capacity must start with the key principle that the person has the capacity to make the decision in question.

The stages are:

Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works? (It doesn’t matter whether the impairment or disturbance is temporary or permanent.)

If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made?

b. Assessment of ability to make a decision

  • 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)?
  • Would the services of a professional (such as a speech and language therapist) be helpful?

The assessment can be performed by anyone, but should be carried out by the person proposing the health or social care decision. Absolute certainty is not needed - it is sufficient that the assessor holds a reasonable belief that capacity is/is not present in relation to a particular decision. This is known as the balance of probabilities. The use of the test of capacity should be recorded. Care plans should include assessments of capacity as appropriate for the different levels of care provided.

4. Health Policy

a. Best Interests

One of the key principles of the Act is that any act done, or decision made, for or on behalf of a person who lacks capacity must be done in that person's best interests.

The Act does not define the term 'best interests', instead it provides a checklist of common factors which must always be taken into account in a situation where a decision is being made for a person lacking capacity. These factors have been broadly summarised below;

  • Equal consideration and non-discrimination
  • Considering all relevant circumstances
  • If the person may regain capacity
  • Permitting and encouraging the person's involvement
  • Special considerations for life sustaining treatment
  • The person's wishes and feelings, beliefs and values, particularly where these are written down
  • The views of other people (where practicable and appropriate)

It should be noted that what is in the persons best interests may be different to what is in their best clinical interests. A best interest’s decision can mean a decision to give withhold or stop treatment. The use of a best interest’s checklist should be recorded as evidence that this has been carried out. Best interest’s decisions should also be reviewed.

b. Restraint

The act gives authority to restrain a person who lacks capacity if certain criteria are met. Restraint is defined as:

  • The use or threat of using force to make a person do something if they are resisting or
  • The restriction of liberty of movement, whether or not the person resists.

Restraint can be verbal, chemical or physical.

The criteria needed for restraint are:

  • The person lacks capacity to the matter in question and it is in the person’s best interests for the act to be done.
  • It is reasonable to believe that it is necessary to restrain the person to prevent harm to them
  • The restraint is a proportionate response to the likelihood of the person suffering harm and the seriousness of that harm

Staff should record that they followed the criteria of the Act. The power to use restraint should be reviewed to ensure proper use. The power of restraint authorises the restriction of liberty of movement but does not permit any act that deprives liberty.

c. The Act creates important safeguards

·         A new Court of Protection

The new Court has the power to make declarations about whether someone lacks capacity, make orders, or appoint Deputies to act and make decisions on behalf of someone who lacks capacity.

·          A new Public Guardian

The Act has created a new public official called the Public Guardian.  The Public Guardian has several duties under the Act including registering Lasting Power of Attorney's (LPA's) and Deputies. The Public Guardian is supported in his role by a new office called the Office of the Public Guardian.

·         Independent Mental Capacity Advocate (IMCA)

An IMCA is someone appointed to support a person who lacks capacity.  They have to be involved when decisions about serious medical treatment or a change in the person's accommodation is being made by the NHS or a local authority and when the person who lacks capacity has no appropriate relative or friend to speak on their behalf.

·         Research involving people who lack capacity

The Act sets out clear guidelines for research involving people who lack capacity. The research must be approved by an appropriate body, which will also ensure that the research is safe and relates to the person's condition. They must also ensure that the research would not be as effective if they use people who have mental capacity.

·       New criminal offence

The Act introduces 2 new criminal offences of ill treatment and willful neglect of a person who lacks capacity. A person found guilty of such an offence may be liable to imprisonment for up to 5 years.

5. Deprivation of Liberty Safeguards – Code of Practice

The deprivation of liberty safeguards (DOLS) was introduced into the Mental Capacity Act 2005 by the Mental Health Act 2007 and have been operative since April 2009.

Deprivation of Liberty authorisation was enacted to ensure compliance with the Human Rights act and in particular Article 5 (1) ‘ a procedure prescribed by law’ and Article 5(4) ensuring the right of appeal supported by legal aid.

The safeguards provide a framework for approving the deprivation of liberty for people who lack the capacity to consent to treatment or care in either a hospital or care home that, in their own best interests, can only be provided in circumstances that amount to a deprivation of liberty and where detention under the Mental Health Act is not appropriate.

The safeguards legislation contains detailed requirements about when and how deprivation of liberty may be authorised. The application by practitioners of the mental capacity is the first stage but where the restrictions become so controlling that the person is thought to be, or likely to be Deprived of their Liberty a formal application to the statutory body (LA or PCT) is required by law.  The code of practice identifies the process which has to be followed and includes the application by the managing authority (Hospital or care home) of an urgent authorisation and standard authorisation. The formal assessment process that must be undertaken by specially trained Best Interest Assessors (BIA’s) and Mental Health Assessors before deprivation of liberty may be formally authorised, with clear timescales for completion, and includes detailed arrangements for renewing and challenging the authorisation of deprivation of liberty.

There is no simple definition to determine when a reasonable degree of restraint or restriction should be considered a deprivation of liberty. There is a principle of proportionality – is a reasonable level of restraint being used which is justified as the minimum restraint required for patient safety? The following are a couple of examples

Case study 1

Mr X admitted to an acute hospital with poorly controlled diabetes

Existing diagnosis of Huntington’s disease

He was unable to understand his present needs for treatment and deemed to lack capacity

He demonstrated major behavioral issues resulting in a need for insulin to be given when he was refusing and staff refusal to give when the patient was demanding treatment. He was unable to leave the ward at any time even with escort or family, due to his high likelihood and previous refusal to return and tendency to become physically aggressive and the instability of his diabetes requiring rapid interventions in an unpredictable manner.

a) age assessment  - He was over the age of 18 years

b) no refusals assessment – there was no pre-existing advanced directives or an treatment decisions made by a relevant appointed donee or deputy

c) mental capacity assessment –Mr X failed on all elements of the capacity assessment

d) mental health assessment - The objective of the mental health assessment is to ensure that the person is medically diagnosed as being of ‘unsound mind’ and so comes within the scope of Article 5 of the European Convention on Human Rights

e) eligibility assessment - This assessment relates specifically to the relevant person’s status, or potential status, under the Mental Health Act 1983. and

f) best interests assessment – It was agreed that the  acute hospital was the most appropriate environment to provide treatment and that the care plan was the least restrictive option at that point in time to keep him safe.

Deprivation of Liberty was authorised for 3 months in order to allow treatment in this particular environment to stabilise his condition and find an alternative permanent placement.

Case Study 2

Ms Z was admitted as an emergency after being found wandering in the street, she was found to have a UTI and a history of decreasing cognitive ability. Six month previously she had had a small fire in her flat after leaving the gas on.  She was undergoing assessment to confirm if return home was a safe option. Her UTI had been treated. Initially she had asked to leave the ward frequently and became muddled as to where she was. The door was locked. She responded well when it was explained she was in hospital for tests she was aware that “people did not think she was safe to go home because of the little fire” although did not agree with their opinion.

a) age assessment  - She was over the age of 18 years

b) no refusals assessment – there was no pre-existing advanced directives or an treatment decisions made by a relevant appointed donee or deputy

c) mental capacity assessment –Ms Z failed on some elements of the capacity assessment as she was not able to recall all details of the decision to stay in hospital, and was not able to weigh up and use all the relevant information regarding the decision not let her go home immediately.

d) mental health assessment - The objective of the mental health assessment is to ensure that the person is medically diagnosed as being of ‘unsound mind’ and so comes within the scope of Article 5 of the European Convention on Human Rights and she did have mild to moderate dementia

e) eligibility assessment - This assessment relates specifically to the relevant person’s status, or potential status, under the Mental Health Act 1983. and

f) best interests assessment – It was agreed that the  hospital was the most appropriate environment to provide treatment at that time.

It was not considered to be a Deprivation of Liberty as although there were restrictions to her Liberty, her care plan allowed escorted outings around the hospital and relatives were able to visit. Ms Z was being consulted and was part of the care planning for her future. Ms Z was happy to stay in hospital for assessment once it was explained to her the reasons she was there and when the assessor met with her she had become more accustomed to the environment and less confused as the UTI had resolved so she was not demanding to leave and was requiring re-orientation infrequently.

6. Scotland and Northern Ireland

a. The Law in Scotland

To have testamentary capacity the person must comprehend what a will is and what would be the consequences of making one [10]. Scottish courts are likely to follow the tests defined above for the making and revocation of wills under English law.

A will under Scottish law may be set aside for facility and circumvention. Facility is "a weakness of the mind .... such that the person can be easily imposed upon and induced to do deeds to his own prejudice", but not amounting to incapacity [11]. Circumvention is an "intimidation operating on the mind as to bring the individual within entire control" [12].  To enable a will to be set aside both facility and circumvention must be present. The greater the degree of facility the lesser the amount of circumvention necessary in order to set aside the will [13]. The decision as to whether a will should be set aside on this ground is obviously one for the court. The medical evidence in such a case goes to defining the degree of facility.

The are no provisions for the use of statutory wills under Scottish Law.

The Adults with Incapacity (Scotland) Act [14] states:

‘For the purposes of this Act, and unless the context otherwise requires-

"adult" means a person who has attained the age of 16 years;

"incapable" means incapable of-

(a) acting; or

(b) making decisions; or

(c) communicating decisions; or

(d) understanding decisions; or

(e) retaining the memory of decisions,

as mentioned in any provision of this Act, by reason of mental disorder or of inability to communicate because of physical disability; but a person shall not fall within this definition by reason only of a lack or deficiency in a faculty of communication if that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise); and "incapacity" shall be construed accordingly.’

b. The Law in Northern Ireland

The law in Northern Ireland is similar to that in England and Wales at present. There is an intention to produce Mental Capacity legislation as soon as that is feasible in the programme for government.

7. Responsibilities / Role of the Geriatrician

It is advisable that consultant in geriatric medicine or old age psychiatry within each Hospital Trust takes a lead responsibility for safeguarding vulnerable adults, and should sit on the Trust’s relevant committee.

Common scenario

Probably the most common scenario in geriatric medicine is where discharge planning leads to a conflict in opinion between the patient and their family or members of staff. The patient will believe that they are able to return home, while staff or family believe that supervised care is required for the patient’s safety. The flowchart below shows the sequence of events.


  • A mental capacity assessment will be carried out by a member of the team – often the social worker or doctor.
  • If a person holds a lasting power of attorney, then this person will be approached to make a decision on behalf of the patient.
  • Otherwise, a “best interests” meeting and decision is made, by bringing together staff in hospital and community if possible, and carers/family. It is important to include those who have been involved in day-to-day care previously.
  • The decision will take into account previously expressed views by the patient, and will be the least restrictive option that is considered reasonable.
  • When no member of the family, or carer, who has been recently involved in the care exists or is available, then an IMCA is requested who will then advise on a best interests decision.
  • Where there is concern regarding possible abuse to a patient lacking mental capacity, then the safeguarding vulnerable adults procedure should be used, by contacting the officer at the Local Authority.


8. Audit and Training

Trusts will be regularly audited and monitored on their use of this legislation by the Care Quality Commission. Trusts have a duty to ensure that all staff who are in contact with patients who may lack mental capacity have had at least basic training in this legislation. Staff who take a lead in their care such as consultants in geriatric medicine should undergo more thorough training with the procedures. There are a number of e-learning modules available ( eg ).

9. Recommendations

All senior staff working in Geriatric Medicine should be familiar with the operation of the Acts described above, and lead by example to demonstrate their concern to protect vulnerable people under their care.

10. References

  1. Mental Capacity Act
  2. Church M, Watts S  Assessment of Mental capacity: a flow chart guide The Psychiatrist 2007 31:304-7
  3. Deprivation of Liberty Safeguards



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