The Mental Capacity Act of 2005, came into force in 2007 in England & Wales. Equivalent legislation exists in Scotland – Adults with incapacity Act 2000 and Northern Ireland – Mental Capacity Act 2016.
The Mental Capacity Act is the statutory framework to empower and protect people over 16 who lack mental capacity, including those living with dementia who often lack the mental capacity to make decisions for themselves.
The other piece of legislation that governs how people affected by mental illness receive treatment and care is the Mental Health Act.
There are 5 key principles that underpin the act as follows:
Principle 1 – Presumption of capacity.
Every adult has the right to make their own decisions and it must be presumed that they have the capacity to do so unless they have had an assessment which shows they don’t.
Principle 2 – Individuals are supported to make their own decisions.
Individuals should be given as much help and support as possible to make their own decisions. Even if a person has been assessed as having a lack of capacity, they should still be involved as much as possible in the decision-making process.
Principle 3 – Unwise decisions should not be treated as a lack of capacity.
Everyone has the right to make their own decisions and you cannot assume a lack of capacity just because someone’s decisions seem unwise or reckless.
Principle 4 – Best interests.
Everything that is done and all decisions made for someone who lacks capacity must be done in their best interest.
Principle 5 – Least restrictive options.
Treatment and care provided for someone who lacks capacity should be the least restrictive option of their basic rights and freedoms.
Deprivation of Liberty Safeguards (DoLS) replaced by the Liberty Protection Safeguards (LPS)
To help ensure the above principles are adhered to, the Act included the Deprivation of Liberty Safeguards (DoLS) which applied to people in care homes or hospitals in England and Wales. The Deprivation of Liberty Safeguards are a set of checks that aim to make sure that any care that restricts a person’s liberty is both appropriate and in their best interests. In July 2018, the government published a Mental Capacity (Amendment) Bill which saw DoLS replaced by the Liberty Protection Safeguards (LPS). This passed into law in May 2019. Under LPS, there is a streamlined process to authorise deprivations of liberty.
Test of capacity
In order to decide whether an individual has the capacity to make a particular decision, there is a two-stage functional test.
- Is there an impairment of the mind or brain?
- Does the impairment mean that the person is unable to make a particular decision?
The act says that a person is unable to make their own decision if they cannot:
- understand information given to them.
- retain that information.
- weigh up the information available to make the decision.
- communicate their decision.
Every effort should be made to find ways to help a person reach a decision by themselves before deciding that they lack capacity.
How Mum was impacted by the Mental Capacity Act
In the later stages of her illness Mum clearly lacked the capacity to make decisions for herself. As a result at the care home where Mum lived, she was granted a Deprivation of Liberty authorisation, which effectively meant that she could be detained at the care home without her consent. Every 12 months we had to go through a process where Mum was assessed, which was a stressful and time-consuming effort. In July 2018 the DoLS were replaced by the Liberty Protection Safeguards (LPS), so I can only hope that the process has been made easier!!