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Understanding the Mental Capacity Act and Deprivation of Liberty Safeguards

What is the Mental Capacity Act (2005)

The Mental Capacity Act (2005) is a law that exists to support safe decision-making for people who are deemed to lack the mental capacity to make decisions for themselves. It also allows those deemed to have the full mental capacity to plan their future should their capacity be affected.


What is Mental Capacity Defined As?

Assessing a persons Mental capacity involves determining whether an individual is still able to make decisions for themselves. When an individual is assessed, they are deemed to have either full capacity, variable capacity or lacking capacity.

Full Mental Capacity: Some people have the mental capacity to make decisions about their own lives – even if some of those decisions are regarded as ‘unwise’ by others.

For example, an individual with full mental capacity may choose to smoke. We know that smoking has health risks attached to it and some people may deem doing so to be ‘unwise’. Ultimately, however, the decision is the individual’s to make.

Variable Mental Capacity: Others have the mental capacity to make some everyday decisions, but not those more complicated decisions because of a mental disorder or illness.

For example, an individual with variable mental capacity may be able to make decisions, such as what they’d like to wear or what they’d like to eat, but may not be able to make a decision on whether to accept treatment from a doctor.

Lacking Mental Capacity: A smaller number of people cannot make any decisions – generally due to severe brain damage

What are the Mental Capacity Act Principles?

There are five core principles that underpin the Mental Capacity Act (2005). They are:

1. Presumption of Capacity

An individual must always be assumed to have capacity unless deemed otherwise – through an assessment process.

For example, just because someone has been diagnosed with dementia, it doesn’t mean they no longer have the mental capacity to make their own decisions.

Mental capacity is variable and time/decision specific. This means that if someone is being asked to make a decision, it has to be assumed they have the capacity to do so. If there is some doubt that the person has the capacity to make the decision, then a capacity assessment must take place before the decision needs to be made.

2. Support to Make a Decision

All practical steps must be taken to help an individual to make a decision for themselves before deeming them to be unable to make the decision.

3. Ability to Make Unwise Decisions

An individual must not be treated as being unable to make a decision on the basis they’ve made an ‘unwise’ decision. Instead, the focus should be assessing whether the individual can make a decision, not the decision itself.

4. Best Interest

If someone is deemed to lack the mental capacity to make a decision, the people helping them must only make decisions in the best interests of the individual, not for anyone else. Any best interests decision-making process has to regard the Best Interest Checklist (which we’ll cover further on).

5. Least Restrictive

When a decision is made on behalf of an individual lacking mental capacity, it must consider their rights and freedoms and whether the chosen option is one that the person would have made for themselves. If a person’s movement or freedom is being limited, it must be the least restrictive option possible.

How Does the Best Interest Decision-Making Checklist Work?

The fourth principle of the Mental Capacity Act (2005)  covers best interests – this essentially helps to protect vulnerable individuals who lack the mental capacity to make their own decisions.

It ensures that any decision being taken on someone’s behalf is being done so in their best interest – rather than to benefit, for example, the person’s family, or staff providing care.

Whenever a best-interest decision is taken, it must follow a best interest decision-making process. This includes:

  • Whether the decision can wait until such a time the person can make it for themselves.
    • For example, if someone has a urine infection and they’ve become very confused, can the decision they’ve asked to be considered be pushed back until after they are recovered?
  • Whether the person could be helped to make the decision for themselves in another way.
    • For example, would writing things down help them make the decision?
  • The thoughts of others who know the person.
    • For example, family members and professionals.

How is Mental Capacity Assessed?

Mental capacity is assessed in two stages.

Stage one considers whether an individual has an impairment of their mind or brain – be it because of illness or injury, or alcohol or drug use.

Stage two considers whether the individual’s impairment leaves them unable to make a decision when they need to.

The Mental Capacity Act states an individual is unable to make a decision if they’re unable to understand the information relevant to said decision, retain the information and use or consider the information given to them in a decision-making process.

What is the Deprivation of Liberty Safeguards (DoLS)?

The Deprivation of Liberty Safeguards (DoLS) is there to protect the human rights and freedoms of vulnerable people who lack mental capacity.

Naturally, you may want to protect someone who is deemed to lack capacity when they’re in a care home or a hospital. However, this needs to be balanced with their human rights – they need to be cared for in a way that is safe but enables as much freedom as possible.

When someone who lacks capacity is restricted in some way, this is regarded as a deprivation of liberty – the safeguards are in place to ensure any instance of this is in the person’s best interests.

It’s important to note that a Lasting Power of Attorney (LPA) cannot make decisions that restrict the freedom of an individual. And DoLS can be and are applied regardless of whether an individual has a valid LPA in place.

Deprivation of Liberty Safeguards (DoLS) and Best Interest Decision Making?

If a person lacking mental capacity is deprived of their liberty, it must be in their best interests – i.e., to keep them safe.

For example, if a person living in a care home had a sensor mat next to their bed, or lived in a suite with a keypad locking system on the door to keep them safe, this would be a deprivation of liberty – as it would prevent them from moving freely around the home without alerting staff. This would be a deprivation of liberty.

It would require a special safeguard being put in place to ensure the restrictions being applied were proportionate – i.e., fairly balanced against the risk of danger. This special safeguard would have to be applied for the measure to be put in place.

What Happens When Best Interest Decision Makers Disagree?

During the process of making a best-interest decision, some people may disagree. For example, family members or professionals may have different opinions and disagree with each other.

This is because an individual can name multiple attorneys to have Lasting Power of Attorney (LPA). There is no limit on the number of people who can be named – the LPA just has to be registered with the Office of the Public Guardian for it to be activated.

In these instances, the individual the decision is being made on behalf of is always the priority. So, if an agreement can’t be reached, an Independent Mental Capacity Advocate (IMCA) may be approached to represent the individual in an impartial and objective way. You can learn more about IMCAs here.

Find out more about Lasting Power of Attorney (LPA) and how it works in our Knowledge Hub piece, What is a Lasting Power of Attorney?