Mental Capacity, DoLS and Advocacy
Mental Capacity Act Deprivation of Liberty Safeguards
The Mental Capacity Act (MCA) 2005 came into force during 2007. A number of government departments sponsored its implementation. The MCA is designed to protect and restore power to those vulnerable people who lack capacity. The MCA also supports those, over the age of 18, who have capacity and choose to plan for their future. It applies to everyone working in health and social care who is involved in the care, treatment and support of people aged 16.
At the heart of the MCA in terms of concepts and values are the five ‘statutory principles’. Consider the five principles as the benchmark. They should be used to underpin all acts done and decisions taken in relation to those who lack capacity.
Using the Mental Capacity Act
This new film below from Social Care Institute for Excellence explains the MCA and how it can protect the right to make choices. It's an introduction to the Act for people who need it, staff, carers and others.
SCIE free online Mental Capacity Act e-learning
This course explores the Mental Capacity Act 2005, including best interests decision-making,and how to support people to make their own decisions.
The course is for everyone who looks after or cares for someone, for example, doctors, nurses, care assistants, social workers, and family members.
Deprivation of Liberty Safeguards
The Deprivation of Liberty Safeguards (DoLS) provide additional protection for the most vulnerable people living in residential homes, nursing homes, hospital environments and supported housing through the use of a rigorous, standardised assessment and authorisation process. They aim to protect those who lack capacity to consent to arrangements made in relation to their care and/or treatment, but who need to be deprived of their liberty in their own best interest to protect them from harm. They also offer the person concerned the rights:
- To challenge the decision to deprive them of their liberty;
- For a representative to act for them and protect their interests; and
- The right to have their status reviewed and monitored on a regular basis.
DoLS help ensure that an institution only restricts liberty safely and correctly and only when all other less restrictive options have been explored. The Local Authority manages this process and reports to the local Safeguarding Adults Board. In March 2014 the Supreme Court judgement in the case of “P v Cheshire West and Chester Council and another” and “P and Q v Surrey County Council” lowered the threshold for a deprivation and significantly widened the scope of the Mental Capacity Act Deprivation of Liberty Safeguards themselves.
Lewisham Council's Adult Social Care has a dedicated Deprivation of Liberty Safeguards web page that provides general information, links to other sources of information and contact details for the Deprivation of Liberty Safeguards Team.
Independent advocacy under the Care Act 2014
Advocacy and the duty to involve
Local authorities must involve people in decisions made about them and their care and support. No matter how complex a person’s needs, local authorities are required to help people express their wishes and feelings, support them in weighing up their options, and assist them in making their own decisions.
When does the advocacy duty apply?
The advocacy duty will apply from the point of first contact with the local authority and at any subsequent stage of the assessment, planning, care review, safeguarding enquiry or safeguarding adult review. If it appears to the authority that a person has care and support needs, then a judgement must be made as to whether that person has substantial difficulty in being involved and if there is an appropriate individual to support them. An independent advocate must be appointed to support and represent the person for the purpose of assisting their involvement if these two conditions are met and if the individual is required to take part in one or more of the following processes described in the Care Act:
- A needs assessment
- A carer’s assessment
- The preparation of a care and support or support plan
- A review of a care and support or support plan
- A child’s needs assessment
- A child’s carer’s assessment
- A young carer’s assessment
- A safeguarding enquiry
- A safeguarding adult review
- An appeal against a local authority decision under Part 1 of the Care Act (subject to further consultation)
Judging ‘substantial difficulty’
Local authorities must consider, for each person, whether they are likely to have substantial difficulty in engaging with the care and support process. The Care Act defines four areas where people may experience substantial difficulty. These are:
- Understanding relevant information
- Retaining information
- Using or weighing information
- Communicating views, wishes and feelings
Who is an ‘appropriate individual’ to assist a person’s involvement?
If the person being supported doesn’t want that person to support them, that’s not an appropriate adult. You can’t force an advocate on someone.
Co-production workshop participant
Local authorities must consider whether there is an appropriate individual who can facilitate a person’s involvement in the assessment, planning or review process, and this includes four specific considerations. The appropriate individual cannot be:
- Already providing care or treatment to the person in a professional capacity or on a paid basis
- Someone the person does not want to support them
- Someone who is unlikely to be able to, or available to, adequately support the person’s involvement
- Someone implicated in an enquiry into abuse or neglect or who has been judged by a safeguarding adult review to have failed to prevent abuse or neglect
The role of an ‘appropriate individual’ under the Care Act is potentially fuller and more demanding than that of an individual with whom it is ‘appropriate to consult’ under the Mental Capacity Act (MCA). Under the Care Act the appropriate individual’s role is to facilitate the person’s involvement, not merely to consult them and make decisions on their behalf.
Information and advice
The Care Act places a duty on local authorities to ensure that all adults in their area have access to information and advice on care and support, and to keep them safe from abuse and neglect. Prior to making contact with the local authority, there may be some people who require independent advocacy to access information and advice.
Continuing health care
The advocacy duty in the Care Act applies equally to those people whose needs are being jointly accessed by the NHS and the local authority, or where a package of support is planned, commissioned or funded by both a local authority and a clinical commissioning group (CCG), known as a ‘joint package’ of care.
The independence of the service is an important consideration for all commissioners. For services to be meaningful and acceptable to those they are designed to support they must have the confidence of individuals, carers and the public.
From April 2015 local authorities will also be responsible for assessing and meeting the social care needs of adult prisoners (not just on discharge from prison but also while in custody). All prisoners will be treated as if they are resident in that area for the purposes of the Care Act and for as long as they reside in that prison. Prisoners will be entitled to the support of an independent advocate in the same circumstances as people in the community.
Social Care and Health have produced this video in British Sign Language on the provision of Independent Advocacy under the Care Act 2014.