Mental Capacity Act & Deprivation of Liberty Safeguards

Mental Capacity

Mental capacity underpins the safeguarding approach. This is because the individual’s opinions must be taken into consideration in any safeguarding interventions where this is possible.

The Mental Capacity Act 2005 states that:

• A person must be assumed to have capacity unless there is evidence that he or she lacks capacity
• A person is not to be treated as unable to make a decision simply because he or she makes an unwise decision.
• A person is not to be treated as unable to make a decision unless all steps to help him or her to do so have been taken without success.
• An act done or decision made under this act for a person who lacks capacity must be done in his or her best interests
• Before anything is done- or before a decision is made - for someone who might lack capacity, thought must be given to whether the action is needed or whether the desired outcome could be achieved in a less restrictive way.

The term ‘best interests’ (what is best for the person) must also consider what the person would have done if they had capacity. This means that the person making the decision must try to make the decision the person themselves would have made. This must include knowledge of the person's past and present wishes as far as is possible.

A range of resources and information has been developed across pan-Lancashire with regard to MCA.  You can take a look here.

Deprivation of Liberty Safeguards

Deprivation of Liberty Safeguards (DoLs) are rooted in the Mental Capacity Act 2005. DoLs are intended to ensure that people who lack mental capacity are protected in law from being deprived of their liberty illegally. The types of settings where this could occur include residential care and nursing homes and hospitals.

The care / nursing home / hospital known as the Managing Authority completes an application and submits it in each case to the local authority for consideration. Following a specialist assessment, a legal deprivation can then be authorised with explicit conditions for the care provider about the how that care should be delivered.