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1.6 Mental Capacity and Deprivation of Liberty Safeguards

RELEVANT CHAPTERS

Policy Aims

Safeguarding Adults

Advocates

RELEVANT GUIDANCE

Mental Capacity Act Code of Practice, 2007

May 2018: This chapter was revised throughout as a result of local review.

1. Mental Capacity

The presumption is that people (aged 16 and over) have the mental capacity to make informed choices about their own safety and how they live their lives. 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 and circumstances;
  • to take action themselves to prevent abuse or neglect;
  • to participate 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 specific decisions for themselves (at the time required) and establishes a framework for making decisions on their behalf, where they are deemed to lack capacity. This applies whether the decisions are life changing events or everyday matters.  All decisions taken in the safeguarding adults’ process must comply with this legislation.

Adults with care and support needs are potentially less likely to be able to protect themselves from the risk of abuse or neglect. Statutory adult safeguarding duties apply equally to those adults with care and support needs regardless of whether those needs are being met, and regardless of whether the adult lacks mental capacity or not.

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 apply to anyone involved in the adult’s care and support, for example paid staff, family carers and anyone who has 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 resulting 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 (for example the police, and adult social care). When it makes a referral, the OPG will make sure the relevant agency keeps the OPG informed of any actions taken. The OPG can also make an application to the Court of Protection for any further  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 Deprivation of Liberty Safeguards 2009 (DoLS) is an amendment to the MCA. The safeguards provide a legal framework to protect people (aged 18 and over) who lack capacity to decide where they reside (whether temporary or permanent) for care or treatment, by reason of a mental disorder (for example dementia, delirium, significant learning disability, brain Injury).  DoLS applies where levels of restriction or restraint used in delivering that care are so extensive as to potentially be depriving the person of their liberty The Safeguards apply where that person’s care is being delivered in a hospital or registered care home, and has not been authorised under the Mental Health Act 1983. For the purpose of DoLS, hospitals and care homes are referred to as the managing authority and the local authorities are known as the supervisory body.

The purpose of DoLS is to prevent deprivation of liberty (see note 1 below) wherever possible, and to ensure that where needed, 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 also provide a robust and transparent framework to challenge deprivation of liberty authorisations when required.

The safeguards apply  to those situations where the individual lacking capacity is residing, or going to reside, in either a care home or hospital. Following the Supreme Court judgment in March 2014 it was also identified that a deprivation of liberty could exist in other community based settings (such as the person’s own home or  in a supported living arrangement) where  the care and support provided is the responsibility of the State. In those cases the responsible commissioning body is required to apply directly to the Court of Protection for consideration of DoLS.

In order to seek appropriate authority to deprive someone of their liberty, hospitals and care homes must make requests to a local authority supervisory body (via the relevant DoLS team) for authorisation to deprive someone of their liberty, in that person’s best interests.   All decisions regarding care and treatment must comply with the MCA and DoLS legislation and all  individuals and practitioners involved with seeking authorisation under the Safeguards should refer to the MCA and DoLS Codes of Practice and act in accordance with their organisations policy and procedures.

Note 1: Deprivation of Liberty is a term used in the European Court of Human Rights (ECtHR) about circumstances when a person is deprived of their liberty and freedom. A distinction is drawn between deprivation of liberty of an individual (which is unlawful unless authorised) and restrictions on the liberty of movement of an individual. In March 2014 the Supreme Court (P v Cheshire West and Chester Council and P and Q v Surrey County Council) confirmed that the ‘acid test’ of what may amount to a deprivation of liberty is whether:

  1. The person is under continuous supervision and control; and
  2. The person is not free to leave.