Support for people who do not have capacity
Everyone should be able to make decisions about their own lives. Sometimes this is not possible, and the person lacks capacity to make a decision.
Someone can lack mental capacity as a result of a condition or disability that results in an impairment to the mind or brain. Its important to understand that a person may lack capacity to make a particular decisions at a particular time. It doesn’t mean that they lack capacity to make any decisions about their life. Lack of capacity can be temporary, and where this is the case the decision should be made, if possible, when the person regains capacity.
The Mental Capacity Act 2005 (MCA)
The ability to make decisions is referred to a ‘capacity’ and there is a law that helps to empower and protect people who may lack capacity it applies to people aged over 16 in England and Wales. This law is called the Mental Capacity Act 2005.
The Office of the Public Guardian has a number of useful Mental Capacity Act booklets which you can download, explaining what the law is and how it could affect you and the person you want to help.
MCA is an empowering piece of legislation which aims to ensure that people with social care needs who have an impairment of their mind or brain are supported to make their own decisions wherever possible. The principles of the Act (s1) state that:
- People should be assumed to have capacity unless it can be demonstrated otherwise
- A person must be supported in whatever way is necessary to make their own decisions
- People have the right to make unwise decisions (and unwise decisions do not demonstrate a lack of mental capacity)
- Any decisions made for someone who lacks capacity must be made in their best interests
- Decisions made on behalf of people who lack capacity must reflect the option that is least restrictive of their rights and freedom of action
MCA only applies where a person lacks capacity as defined in the Act – i.e. ‘if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’ (2.1).
Where someone lacks capacity the decision-maker must consult other people if it is appropriate to do so and take into account their views as to what would be in the best interests of the person lacking capacity, especially:
- anyone previously named by the person lacking capacity as someone to be consulted
- Carers, close relatives or close friends or anyone else interested in the person’s welfare
- any attorney appointed under a Lasting Power of Attorney
- any deputy appointed by the Court of Protection to make decisions for the person
More information can be found here:
- Mental Capacity Act 2005: An easy read guide
- Mental-capacity-act-code-of-practice
- Making decisions about your health, welfare or finances - Gov.UK
- Mental Capacity Act: making decisions - Gov.UK
Deprivation of Liberty (DOLS)
Deprivation of Liberty Safeguards (DoLS) exists to safeguard individuals when a deprivation of liberty is an unavoidable part of a best interests care plan. Individuals who are identified as potentially deprived of their liberty must be considered on a case-by-case basis and all appropriate steps taken to remove the risk of a deprivation of liberty where possible.
There are times when a person’s freedom may be restricted to prevent them from coming to harm. For example, we may prevent someone leaving a care home by locking the front door, for fear they may get injured on a busy road.
The Mental Capacity Amendments Act 2019 introduced the DoLS which are the safeguards that protect a person who lacks capacity to consent to their care and treatment in order to keep them safe from harm.
DoLS provide legal protection for those vulnerable people who are, or may become, deprived of their liberty within the meaning of Article 5 of the European Convention on Human Rights (ECHR) in a hospital or care home, whether placed under public or private arrangements. The safeguards exist to provide a legal framework and protection in circumstances where deprivation of liberty appears to be unavoidable in a person’s best interests.
If you want to know more or need to refer to the DoLS team please see our DoLS page.
Where this involves depriving a person in a setting such as their own home or supported living an application to the Court of Protection may be required to authorise the Deprivation of Liberty.
What is the court of protection?
The Court of Protection is a specialised court that deals with matters relating to the welfare and financial matters of individuals who lack the mental capacity to make their own decisions.
The primary role of the Court of Protection is to make decisions and provide protection for individuals who are deemed to lack capacity to make specific decisions about their personal welfare or property and financial affairs.
The Court of Protection has several key functions:
The Court is responsible for assessing whether an individual has the mental capacity to make specific decisions
When individuals are unable to make decisions for themselves, the court can appoint deputies to make decisions on their behalf in relation to their welfare, medical treatment or financial matters. Deputies are usually family members, friends or professionals, and they must always act in the best interests of the individual lacking capacity. It is a fundamental principle that deputies are not authorised to make decisions the individual is capable of making for themselves after all practicable steps have been taken to help them.
The Court has the authority to make one-off decisions on behalf of individuals lacking capacity if there are disputes or concerns regarding their welfare, medical treatment or financial matters. This includes decisions about residence, care, medical treatment and property and financial affairs.
The Court oversees the registration of Lasting Powers of Attorney (LPA) documents. LPAs are legal documents that allow individuals to appoint someone they trust as an attorney to make decisions on their behalf in case they lose capacity in the future. The Court can intervene if there are concerns about the attorney’s actions and can make decisions on the validity of the LPAs where this is in doubt.
The Court plays a crucial role in protecting vulnerable individuals from abuse or exploitation. It can investigate allegations of abuse and take appropriate measures to safeguard the person’s welfare and interests such as removing a deputy if they are not acting in the persons best interests.
More information can be found on the Court of Protection handbook website.
What should I do if there is no one else to help me make these decisions?
For decisions about serious medical treatment, certain changes of accommodation and care reviews where the person lacks capacity, and where the person has no one who can be consulted, the decision-maker must consider whether they need to involve an Independent Mental Capacity Advocate (IMCA) or a rule 1.2 rep. Decision-makers must also consider involving an advocate in decisions involving adult protection issues, even if there is someone who fits into any of the above categories who could be consulted.
You can find more information about local advocacy services and what types of advocacy there on the VoiceAbility website.