Mental Capacity, DoLS and Advocacy

The Mental Capacity Act 2005 is there to empower people to make decisions and to support them when their capacity for making decisions is impaired. It means that you have to look at what the individual needs, and it is specific to a decision at a specific time. It’s not a blanket judgement over their mental capacity.

The Mental Capacity Act 2005 came into force during 2007. The law is designed to protect and restore power to those vulnerable people who lack capacity. The law 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 law in terms of concepts and values are five ‘statutory principles’

1. Presume capacity

2. People may need support

3. People can take unwise decisions

4. Best interest decisions should be made on behalf of the person

5. When you make that decision it should be the less restrictive option

Consider these five principles as the benchmark. They should be used to underpin all acts done and decisions taken in relation to those who lack capacity.

Mental Capacity Act Overview and the National Mental Health Capacity Forum

The film below from Social Care Institute for Excellence explains the Mental Capacity Act 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.

Using the Mental Capacity Act

This video from Social Care Institute for Excellence explains the Mental Capacity Act 2005 and how it can protect the right to make choices. For people who need the MCA, their carers, and others. The film includes people who lack capacity, discussing it.

Mental Capacity Law and Policy - The Key Points

This video from Alex Ruck Keene of 39 Essex Chambers. Alex has been recognised for several years as one of the leading experts in the Mental Capacity Act 2005. In this video Alex explains the Mental Capacity Act 2005, what it is, how it is applied and links to relevant case law.

The Mental Capacity Toolkit

The Mental Capacity Toolkit produced by the Bournemouth University is to help support health and social care professionals working with individuals whose decision-making capacity is limited, fluctuating, absent or compromised. Demographic changes mean there are increasing numbers of people living with conditions which may impact on their decision-making capacity, and as such it is vital that professionals are confident in their understanding use of the Mental Capacity Act 2005. This tool brings together information from a range of professionals working in the field of mental capacity to provide a comprehensive guide to practice.

Best Interests Checklist

Where a person lacks mental capacity to consent to care and treatment (including restraint and Deprivation of liberty), and there are no other legal provisions for decisions to be made on their behalf, decisions regarding care and treatment must be made under Best Interests principles. 

The Mental Capacity Act 2005 contains what is known generally as the ‘best interests checklist’. It is important to note that this is a non-exhaustive list and that not all the factors will be equally as relevant to all types of decisions, but they must all be considered each time, even if only to disregard them as not relevant to that case.

Understanding Mental Capacity from the The Open University 

This free course, Understanding mental capacity, describes the principles and criteria underpinning the assessment of mental capacity and decision making in the UK. The course begins by looking at what mental capacity – and the lack of it – means.

You will be introduced to various groups of people who are more likely to lack mental capacity, but you will also learn why it is relevant to everyone.

You will look at what can be done to help someone to make a decision themselves and the principles and steps that enable people to judge, fairly, whether someone has capacity or not.

You will be introduced to the legislation in the UK and will see how it supports and protects people who may lack capacity. 

The course will appeal to those who support people aged 16 or over and who have to make decisions in order to address the variety of interpretation and inconsistent application of services in everyday provision. It will explain the law and how it is applied in a practical way for those making important decisions about other’s lives, such as health and social care staff, police, banks and insurance industry workers, and retailers.

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

Supported decision-making toolkit for people with communication difficulties

Practicable steps for people with communication difficulties

LSAB 7 Minute Briefing - Advocacy

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.

Independence

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.

Prisoners

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.