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1.6 Mental Capacity and Deprivation of Liberty Safeguards

1. Mental Capacity

The presumption is that adults have the mental capacity to make informed choices about their own safety and how they live their lives. Issues of mental capacity and the ability to give informed consent are central to decisions and actions in safeguarding adults. All interventions need to take into account the ability of adults to make informed choices about the way they want to live and the risks they want to take. This includes their ability:

  • to understand the implications of their situation
  • to take action themselves to prevent abuse
  • to participate to the fullest extent possible in decision-making about interventions

The Mental Capacity Act (MCA) 2005 provides a statutory framework to empower and protect people who may lack capacity to make decisions for themselves and establishes a framework for making decisions on their behalf. This applies whether the decisions are life changing events or everyday matters.  All decisions taken in the safeguarding adults process must comply with this Act.

Adults with care and support needs are potentially less likely to be able to protect themselves from the risk of abuse or neglect. This can include such adults who have capacity to make their own decisions. Statutory adult safeguarding duties apply equally to those adults with care and support needs regardless of whether those needs are being met, regardless of whether the adult lacks mental capacity or not and regardless of the setting.

The MCA created the criminal offences of ill treatment and wilful neglect in respect of people who lack the ability to make decisions. The offences can be committed by anyone responsible for that adult’s care and support – paid staff but also family carers as well as people who have the legal authority to act on that adult’s behalf (that is a person with power of attorney or Court appointed deputies).

These offences are punishable by fines or imprisonment. Ill treatment covers both deliberate acts of ill treatment and also those acts which are reckless which results in ill treatment. Wilful neglect requires a serious departure from the required standards of treatment and usually means that a person has deliberately failed to carry out an act that they knew they were under a duty to perform.

If someone has concerns about the actions of an attorney acting under a registered Enduring Power of Attorney (EPA) or Lasting Power of Attorney (LPA), or a Deputy appointed by the Court of Protection, they should contact the Office of the Public Guardian (OPG). The OPG can investigate the actions of a Deputy or Attorney and can also refer concerns to other relevant agencies. When it makes a referral, the OPG will make sure the relevant agency keeps it informed of the action it takes, The OPG can also make an application to the Court of Protection if it needs to take possible action against the attorney or deputy. Whilst the OPG primarily investigate financial abuse it is important to note that it also has a duty to investigate concerns about the actions of an attorney acting under a health and welfare Lasting Power of Attorney or a personal welfare deputy. The OPG can investigate concerns about an attorney acting under a registered Enduring or Lasting power of Attorney, regardless of the adult’s capacity to make decisions.

2. Deprivation of Liberty Safeguards

The Mental Capacity Act 2005 provides the statutory framework for acting and making decisions on behalf of individuals who lack the mental capacity to do so for themselves. The DoLS were introduced to provide safeguards for people lacking capacity, specifically to consent to where they reside for treatment or care, in either a hospital or a care home.

The purpose of the DoLS is to ensure that the decision to deprive someone of their liberty is made in the individual’s best interests following defined processes and in consultation with specific authorities. The Safeguards provide protection to people who have a mental disorder and lack the capacity to make the decision upon where to reside for the purpose of receiving care and treatment. The DoLS apply only to those situations where the individual lacking capacity, is either residing or going to reside, in either a care home or hospital. However, following the Supreme Court judgment in March 2014 it was identified that a deprivation of liberty could be found to exist in other community based settings other than in care homes or hospitals. These could include, the person’s own home or, in a supported living arrangement where it is identified that the care and support is the responsibility of the State. The DoLS legislation does not provide a framework for which these other deprivations occurring can then be lawfully authorised within the ECHR. The acid test of whether there is likely to be a DoL is whether the person is subject to continuous supervision and control and is not free to leave.

Hospitals and care homes must make requests to a local authority supervisory body for authorisation to deprive someone of their liberty if they believe it is in their best interests. For people living in community settings to whom the ‘acid test’ applies and/or where there are issues relating to the Human Rights Act, local authorities and NHS trusts may need to apply to the Court of Protection to seek authorisation, and must be compliant with recent case law (Re X).

All decisions on care and treatment must comply with the MCA and DoLS Legislation, in order to ensure this, all individuals involved with seeking authorisation under the Safeguards are encouraged to refer to the DoLS Codes of Practice and be in accordance with local interagency policy.