The Mental Capacity Act 2005
The Mental Capacity Act 2005 (MCA) came into practice in 2007 but is often confused with the Mental Health Act or used to make generalisations about an individual’s ability to understand situations or the actions that they take.
The MCA is designed to protect and restore power to those people who lack capacity. The MCA also supports those, over the age of 18, who have capacity and choose to plan for their future. It applies to everyone working in health and social care who is involved in the care, treatment and support of people aged 16.
A Code of Practice which was published in 2013 gives more detail on how to apply the law in day to day work.
What is the point of the Act?
The MCA tells us to make sure that decisions are not made for people where they are able to choose for themselves, to help people decide for themselves, even if we do not necessarily agree with the decision.
It protects the rights of a person who may not be able to make a decision where their mind or brain is impacted by illness, disability or the effect of drugs or alcohol, and says that we must take certain steps to make sure that any action that happens is in the best interests of that person.
One part of the Act does relate to the assessment of an individual’s mental capacity in relation to particular decisions, but it is the 5 principles which are the most important to understand first and help you to think about how you might use your knowledge of the MCA in your day to day work:
Every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise. Do not assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability.
A new MCA toolkit has also been launched from Bournemouth University in October 2021, created with the Burdett Trust for Nurses.
It’s a free online learning tool to support nurses and other practitioners in their understanding and duties under the Human Rights Act and MCA. It is easy to use and helps you to think through the process in a structured way.
You can access it here: Mental Capacity Toolkit
Deprivation of Liberty Safeguards
Deprivation of Liberty Safeguards (DoLS) are part of the Mental Capacity Act 2005, and provide additional protection for the most vulnerable people living in residential homes, nursing homes, hospital environments and supported housing through the use of a rigorous, standardised assessment and authorisation process. They aim to protect those who lack capacity to consent to arrangements made in relation to their care and/or treatment, but who need to be deprived of their liberty in their own best interest to protect them from harm. They also offer the person concerned the rights:
- To challenge the decision to deprive them of their liberty;
- For a representative to act for them and protect their interests; and
- The right to have their status reviewed and monitored on a regular basis.
DoLS help ensure that an institution only restricts liberty safely and correctly and only when all other less restrictive options have been explored. The Local Authority manages this process and reports to the local Safeguarding Adults Board.
Further Information can be found at:
Cambridgeshire County Council: https://www.cambridgeshire.gov.uk/residents/working-together-children-families-and-adults/how-we-work/adult-safeguarding-and-mental-capacity/mental-capacity/deprivation-of-liberty-safeguards/
Peterborough City Council: https://www.peterborough.gov.uk/healthcare/safeguarding/safeguarding-adults/deprivation-of-liberty/
In May 2019 the Mental Capacity (Amendment) Act brought in a new system called Liberty Protection Safeguards (LPS) to replace the current DoLS.
This has been delayed for a number of reasons but should come into use April 2022 and is hoped to be a simpler process that is more person-centred.
The government has recently published factsheets about the Liberty Protection Safeguards.
- Criteria for authorisation
- Appropriate person and IMCAs
- The approved mental capacity professional role
- Life-sustaining treatment or vital acts (section 4b)
- Authorisations, renewals and reviews
- The right to challenge an authorisation in court
Information about support that is being provided ahead of the implementation of LPS can be found on the government website