Mental Capacity Act & Deprivation of Liberty Safeguards: MCA & DoLS

Category: Care, How To Guide Matt Kindell 0

The Mental Capacity Act (MCA) and the Deprivation of Liberty Safeguards (DoLS) are essential legal frameworks designed to protect the rights of individuals who lack the mental capacity to make decisions for themselves.

This article delves into the key aspects of MCA and DoLS, the relationship between the two, and the challenges faced in implementing them.

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Mental Capacity Act (MCA)

Key Principles

The MCA was introduced in England and Wales in 2005 to provide a legal framework for making decisions on behalf of individuals who lack mental capacity. It is based on five key principles:

  • Presumption of capacity: Every adult has the right to make their own decisions unless it is proven that they lack capacity.
  • Support to make decisions: Individuals should be given all possible help to make decisions before determining that they lack capacity.
  • Unwise decisions: Having the capacity means that an individual has the right to make unwise decisions.
  • Best interests: Any decision made on behalf of someone lacking capacity must be in their best interests.
  • Least restrictive option: When making decisions, the least restrictive option should be chosen to respect the person’s rights and freedom of action.

Assessing Capacity

The MCA provides a two-stage test to assess capacity:

Does the person have an impairment of the mind or brain, or is there a disturbance affecting how their mind or brain works?

Does the impairment or disturbance mean that the person is unable to make a specific decision at the time it needs to be made?

Best Interests

When making decisions on behalf of someone lacking capacity, the decision-maker must act in the person’s best interests. This includes considering the individual’s wishes, feelings, beliefs, values, and any other factors they would likely consider if they had capacity.

 

Deprivation of Liberty Safeguards (DoLS)

Purpose

DoLS were introduced in 2009 as an amendment to the MCA. They provide a legal framework for authorizing the deprivation of liberty for individuals who lack capacity and need care or treatment in a care home, hospital, or supported living arrangement that involves significant restrictions on their freedom.

Criteria

To be eligible for DoLS, the person must:

  • Be aged 18 or over.
  • Have a mental disorder.
  • Lack capacity to consent to the arrangements for their care or treatment.
  • Be at risk of harm if they are not deprived of their liberty.

Process

The DoLS process involves a series of assessments conducted by qualified professionals, such as a Best Interests Assessor and a Mental Health Assessor. If the assessments determine that the deprivation of liberty is necessary and in the person’s best interests, the DoLS authorization is granted. The authorization is subject to regular reviews and can be challenged at any time by the individual, their representative, or their family.

Relationship between MCA and DoLS

The MCA and DoLS work together to protect the rights of individuals lacking capacity. The MCA provides the general framework for decision-making, while DoLS focus specifically on the authorization and safeguards for depriving a person of their liberty. DoLS are an essential component of the MCA, ensuring that any deprivation of liberty is lawful, necessary, and in the person’s best interests.

Situations Requiring MCA and DoLS

Care Homes and Hospitals

DoLS are most commonly used in care homes and hospitals, where individuals with cognitive impairments may need constant supervision, restricted movement, or physical restraints to prevent harm. In these settings, care providers must apply for DoLS authorization to ensure that any restrictions imposed are legally justified and regularly reviewed.

Community-Based Settings

Although less common, DoLS may also be required in community-based settings, such as supported living arrangements or shared accommodation. In these cases, the local authority must assess whether the person’s care and support arrangements involve a deprivation of liberty and, if so, seek the necessary authorization.

The Role of Professionals and Family Members

Professionals, such as care providers, social workers, and healthcare professionals, play a crucial role in the MCA and DoLS process. They must work collaboratively to assess capacity, make decisions in the person’s best interests, and ensure that any deprivation of liberty is authorized and reviewed.

Family members and carers also have a vital role in supporting the individual and advocating for their rights. They can provide valuable insights into the person’s wishes, feelings, and preferences, ensuring that any decisions made on their behalf truly reflect their best interests.

Challenges in Implementing MCA and DoLS

There are several challenges in implementing MCA and DoLS, including:

  • Limited awareness and understanding of the legal frameworks among professionals and families.
  • Resource constraints, leading to delays in assessments and reviews.
  • The complex relationship between mental capacity and mental health legislation, which can create confusion and difficulties in determining the appropriate legal framework to apply.

Recent Developments and Reforms

In response to the challenges and the evolving landscape of care and support, the UK government has proposed a new system called the Liberty Protection Safeguards (LPS). The LPS aims to streamline the process, improve access to safeguards, and provide a more robust system for protecting the rights of individuals lacking capacity.

Conclusion

The Mental Capacity Act and Deprivation of Liberty Safeguards play a crucial role in ensuring that the rights of individuals who lack capacity are protected. By understanding the key aspects, criteria, and processes involved in these legal frameworks, professionals and family members can better advocate for the rights and best interests of those they support.

 

FAQs

What is the Mental Capacity Act (MCA)?

The MCA is a legal framework in England and Wales designed to protect the rights of individuals who lack the mental capacity to make decisions for themselves.

What are Deprivation of Liberty Safeguards (DoLS)?

DoLS are an amendment to the MCA that provides a legal framework for authorizing the deprivation of liberty for individuals who lack capacity and need care or treatment that involves significant restrictions on their freedom.

How are MCA and DoLS related?

The MCA and DoLS work together to protect the rights of individuals lacking capacity, with DoLS focusing specifically on the authorization and safeguards for depriving a person of their liberty.

When is DoLS authorization required?

DoLS authorization is required when an individual aged 18 or over, with a mental disorder, lacks capacity to consent to their care or treatment arrangements, and is at risk of harm if not deprived of their liberty. This commonly applies to care homes, hospitals, and some community-based settings.

What are the challenges in implementing MCA and DoLS?

Challenges include limited awareness and understanding of the legal frameworks, resource constraints causing delays in assessments and reviews, and the complex relationship between mental capacity and mental health legislation.