7.1 Mental Capacity and Deprivation of Liberty

1. Introduction

The Mental Capacity Act (MCA) 2005 is designed to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment. It applies to people aged 16 and over, and covers decisions about day-to-day things like what to wear or what to buy for the weekly shop, as well as serious life-changing decisions like whether to move into a care home or have major surgery.

The MCA has five principles, which underpin its fundamental concepts and govern its implementation. These are:

• Assume capacity unless it is proved otherwise – every adult has the right to make their own decisions and must be assumed to have capacity to do so unless it is proved otherwise.
• Give all appropriate help before concluding someone cannot make their own decisions – everyone should be encouraged and enabled to make their own decisions, or to participate as fully as possible in decision-making, by being given the help and support they need to make and express a choice.
• Accept that people have the right to make what might be seen by others as eccentric or unwise decisions.
• Always act in the best interests of people without mental capacity; decisions made on their behalf should be made in their best interests, giving weight to the decision they themselves would have wanted.
• Decisions made should be the least restrictive of the person’s basic rights and freedoms.

The deprivation of liberty safeguards (DoLS) were introduced to provide a legal framework around the deprivation of liberty. Specifically, they were introduced to prevent breaches of the European Convention on Human Rights (ECHR).

In some cases, people lack the mental capacity to consent to particular treatment or care that is recognised by others as being in their best interests, or which will protect them from harm. Where this care might involve depriving vulnerable people of their liberty in either a hospital or a care home, DoLS were introduced to provide extra safeguards, in law, to protect their rights and ensure that the care or treatment they receive is in their best interests.

The deprivation of liberty safeguards provide legal protection for vulnerable people who are, or may become, deprived of their liberty within the meaning of Article 5 of the ECHR in a hospital or care home, whether placed under public or private arrangements. They do not apply to people detained under the Mental Health Act 1983.

2. Purpose

The purpose of this policy is to inform staff about the arrangements for working with people over the age of 16 who lack the mental capacity to make decisions about their care and treatment.

It also sets out the procedures for staff to follow in assessing capacity and making best interest decisions. See Section 18, Procedure.

3. Scope

Staff who are involved in providing care, support or treatment to a person who lacks mental capacity are legally obliged to implement the Mental Capacity Act and Code of Practice.

4. The Codes of Practice

Despite the existence of this policy and procedure, you are legally required to have regard to the most recent Code of Practice in relation to MCA.

If you have to go to Court or Tribunal for any criminal or civil proceedings and it appears that you have not regarded, or have failed to comply with the code this will be taken into account in any subsequent determination that is made. For more information, please see:

Code of Practice for the Mental Capacity Act 2005.

Code of Practice for the Deprivation of Liberty Safeguards

5. Roles and Responsibilities of Staff working with the Mental Capacity Act

5.1 Health and social care staff

The Mental Capacity Act 2005 (MCA) identifies the need for all practitioners to carry out decision and time specific assessments of mental capacity where there are doubts about a person’s ability to make the required decision. The kinds of decisions which are covered by the MCA range from day-to-day decisions to significant decisions.

More serious decisions which have greater consequences for the person who, it is thought, may lack capacity, will justify a more formal assessment of capacity. This covers decisions relating to providing healthcare or treatment, providing nursing and social care, major financial decisions, carrying out diagnostic examinations and tests, providing professional medical treatment, giving medication, providing emergency care, carrying out other necessary medical procedures and therapies and arranging to refer someone to hospital for an assessment or for treatment.

Some decisions can never be made in a person’s best interests e.g. marriage, divorce, voting, sexual relationships. See Section 17, Excluded Decisions.

5.2 Ambulance service

North West Ambulance Service NHS Trust (NWAS) provides ambulance services to the North West of England including Greater Manchester.

There are two significant MCA interfaces with NWAS:

• Acting in the best interests of a patient who lacks mental capacity – clinicians should use the two stage MCA test of capacity to make an assessment of the person’s mental capacity and a best interests decision should be made. If a decision is made to convey in the person’s best interests, clinicians should try to persuade the patient to cooperate with them. If the patient is resisting transfer to a local hospital, clinicians should use necessary and proportionate restraint. If the patient continues to actively resist, and there is a significant risk of injury to either the patient or clinicians, they should request the assistance of Greater Manchester Police. In both instances, the form ‘Conveyance of Patient Lacking Capacity to Hospital/Care Home’ (MCA18), should be completed. If a decision is made not to convey, this decision should be appropriately documented. Clinicians should also consider whether a Safeguarding Adults referral is required in this situation.
• Acting in response to an advance that has been made by a patient – NWAS can ‘flag’ specific instructions, as a ‘clinical alert’ linked to a patient’s address, and this will be relayed to crews responding to an emergency call. Best interests ‘allow a natural death’ (Do Not Attempt Cardio-Pulmonary Resuscitation) decisions are generated by health professionals rather than patients but must also be signed by the patients GP or appropriate doctor. All advance care documents must also be retained within the patient’s home and be easily accessible in an emergency. Health and social care staff should inform the NWAS Medical Director of Advance Decisions to allow a natural death in order that a clinical alert can be instigated.

5.3 Police

Although the Mental Capacity Act is primarily aimed at health and social care professionals and carers when making decisions about a person’s welfare, it will in some circumstances be applicable to police officers where a person whom it is reasonably believed to lack mental capacity appears to be in need of a emergency response. This includes, for example, situations where death or serious harm may occur to someone who refuses treatment or help (the MCA also covers temporary incapacity due to injury, such as concussion following a head injury, substance misuse and mental ill health). In these cases, police officers may need to make immediate decisions while awaiting further assessment by a health or social care professional.

The MCA applies in both public and private. The police may be able to gain entry to private premises through the power enacted under S.17 of the Police and Criminal Evidence Act (PACE) in order of saving life or limb or preventing serious damage to property where there is reasonable belief. The circumstances may then be such that subsequently the use of the Mental Capacity Act is an appropriate solution to deal with the incident.

However, in the case of R (Sessay) v (1) South London and Maudsley NHS Foundation Trust and (2) Commissioner of Police of the Metropolis [2012] 2 WLR 1071 it was made clear that the Mental Capacity Act cannot be used to remove apparently mentally disordered persons to a place of safety for the purposes set out in sections 135 and 136 of the Mental Health Act.  The Police cannot remove a person when in a private premises for the purposes set out in section 135 and 136 of the MHA.  However a Police Officer can remove a person who is not in a private premises to a place of safety under section136 if it appears to the officer that the person is suffering from a mental disorder and is in immediate need of care or control. The officer must think that it is in the best interests of the person or the protection of others to do so.  An officer can also keep that person at the place of safety or remove them to another place of safety if necessary.

It may, in appropriate circumstances, be possible to rely on s.5 and s.6 of the Mental Capacity Act to provide protection from liability in civil and/or criminal proceedings for necessary acts done in the best interests of a person lacking capacity. This protection only applies where the officers:

1. Have taken reasonable steps to establish whether the person lacks capacity in relation to the decision in question;
2. Reasonably believe that:

• • the person lacks capacity in relation to the matter; and
  • it is in the person’s Best Interests for it to be done.

The MCA Code of Practice paragraph 6.5 sets out various actions that might be covered by s.5, including taking someone to hospital for assessment or treatment and providing care in an emergency.

Where restraint is carried out, officers must reasonably believe it is necessary to prevent harm to the person and the restraint must be a proportionate response to the likelihood of harm and the seriousness of that harm (s.6 (2) and (3)). Restraint occurs where there is force applied or threatened force to ensure the action which the person resists or where there is restriction of the person’s liberty of movement, whether or not they resist. Note that the Mental Capacity Act does not permit use of restraint to be used where the threat of harm or damage is towards other persons or property, in these cases Police should rely upon their powers from PACE where a criminal offence has been committed.

If officers encounter a person whom they reasonably believe to lack capacity in relation to the specific decision, they should consider taking action to safeguard the person’s best interests, having regard to how that purpose can be achieved in a way that places the least restrictions on the person’s rights and freedom of action. Some people will experience fluctuating capacity which can affect their ability to understand information and make decisions within a period of time.

Where Police are the only service on scene it may be necessary to make an assessment of capacity and act accordingly before other services arrive due to the seriousness or urgency of the situation. If the Mental Capacity Act is used, officers should ensure they record the steps they took to establish the person lacked capacity. When a doctor, member of the ambulance service or other professional arrives on the scene, Police should defer to their expertise and provide support as appropriate.

Although it is not possible to be prescriptive in advance, because each case has to be assessed on its merits, officers may wish to consider carefully whether in any particular case it would be practicable to avoid transporting a Person in a police van and to use an ambulance instead. It is GMP policy to request an ambulance however if one is not readily available then it may be necessary for Police to transport. In this case, those present should consider whether mechanical forms of restraint are absolutely necessary. If a person is restrained in handcuffs and leg restraints and transported in a police van, for example, there is likely to be a deprivation of liberty. For the police to use powers under Section 5 of the Mental Capacity Act, there must be an emergency situation.  The Police also need make reasonable adjustments (if there is time in an emergency situation) to their application of usual control and restraint due to the person’s incapacity.

The Police may also be involved in decisions to prosecute under Section 44 of the Mental Capacity Act., which introduces specific offences of ill-treatment and wilful neglect of a person who lacks capacity to make relevant decisions.

5.4 Voluntary sector providers

It is expected that all partners and voluntary sector providers develop their own organisational Mental Capacity Act operational procedures to apply when concerns about a person’s decision making are apparent.

In the first instance, if concerns are identified, providers are advised to discuss this with the person and recommend that they contact a relevant professional (e.g. GP, adult social care, health provider) or, with consent, do this on their behalf. However, if there is concern regarding life or limb or decisions that could affect the person’s welfare, their safety or the health of others, then actions can be taken regardless of the person’s consent.

6. Assessing Capacity

6.1 The test of capacity

The MCA sets out a single clear test for assessing whether a person lacks ‘capacity to take a particular decision at a particular time’. It is a ‘decision-specific’ test. No one can simply be labelled ‘incapable’ as a result of a particular medical condition or diagnosis. Reference should be made to Chapter 4 of the code of practice, which looks at how the Act defines a person’s capacity to make a decision and how capacity should be assessed.

6.2 Defining a Lack of Capacity

The law gives a specific definition of what it means to lack capacity for the purposes of the MCA 2005. It is a legal test, and not a medical test as described in s.2(1) MCA 2005:

‘a person lacks capacity in relation to a matter if at the material time they are unable to make a decision themselves in relation to the matter because of an impairment of, or disturbance in the functioning of the mind or the brain’.

It does not matter whether the impairment or disturbance is permanent or temporary. A lack of capacity cannot be established merely by reference to:

• a person’s age or appearance, or
• a condition or an aspect of their behaviour which might lead others to make unjustified assumptions about their capacity.

Any question whether a person lacks capacity must be decided on the balance of probabilities and the ‘burden of proof’ is for the professional undertaking the assessment to identify that a person has or has not got capacity regarding specific decision making.

To apply the capacity test, it can be broken down into three questions:

• Is the person able to make a decision?

If they cannot:

• Is there an impairment or disturbance in the functioning of the person’s mind or brain?

If so,

• Is the person’s inability to make the decision because of the identified impairment or disturbance?

The ordering of the first and second questions are opposite to what is set out in the Code of Practice but is considered best practice – see PC v City of York Council [2013] EWCA Civ 478.

6.3 Ability to make decisions (the functional test)

A person is unable to make a decision if they do not meet any one of the following criteria:

1. Able to understand information relevant to the decision:
   • The person must be able to understand the nature of the decision and the consequences. The understanding does not need to be in depth, a broad understanding is acceptable under the MCA 2005.
   • The information should include possible options and what happens if the decision is not made.
   • All possible help must be given to the person to understand the information, including using simple language and visual aids, if needed.
   • The assessor should undertake the assessment in the best environment for the person and at the best time of day for them.
2. Able to retain that information:

• • The information only needs to be retained for long enough to make the decision in question. There is no set time limit for how long this is.
  • The person only needs to have capacity at the time the decision needs to be made. It might be necessary to repeat the discussion again at another time before the action is taken to demonstrate that the person’s decision is the same.
  • It is important to help the person retain the information, use of notes or recording the decision are septs that could be taken.

3. Use or weigh that information as part of the process of making the decision:

• • The person should be able to demonstrate that they understand the consequences of the decision.
  • This might mean giving them time to think about it and to weigh the advantages and disadvantages.
  • It might be necessary to involve another person to help in the weighing up process such as an advocate, carer, friend or family member.

4. Communicate their decision (whether by talking, using sign language or any other means):

• • The assessor should ensure that the person’s capacity is not misjudged because they have difficulty understanding them.

Assessors are required to consider other parties involved in the person’s life and decision making and best practice denotes that parents, carers and providers should be consulted about their knowledge of the person’s known wishes. This is to ensure that the person’s stated wishes prior to incapacity are recorded.

Capacity should be presumed unless there is clear evidence to the contrary. In the case of receivers and deputies, the application requires a certificate to be completed by the GP or specialist to confirm mental incapacity before they can be appointed.

6.4 Factors which may affect capacity

Temporary impairment

A person’s mental capacity can vary or be temporarily impaired due to mood or depression and drug or alcohol intoxication. In these circumstances, it may be possible to put off a decision until a later time when the person has regained capacity.

A person’s mental capacity may also vary or be temporarily impaired due to an underlying physical disorder, known as delirium or ‘acute confusional state’ which is a common clinical syndrome characterised by disturbed consciousness, cognitive function, or perception, which has an acute onset and fluctuating course. It usually develops over 1–2 days.

Capacity for some decisions, but not others

A person may have the capacity to make some decisions, but not others. We must weigh up a person’s capacity against the specific decision that needs to be made. For example, a person who cannot understand the financial issues around entering long term care might still have the capacity to make a choice about whether they want to go into long term care at all and, if so, which home.

Providing information

When providing information to support decision making, it should be in a format that the person can understand.

Pressure / coercion

Carers or family members may sometimes exert undue pressure on the person, when actually the person is either capable of making their own decisions or could be if they were provided with help. The Domestic Abuse Act 2021 introduced a statutory definition of Domestic Abuse which also includes emotional abuse, coercive and controlling behaviour and economic abuse.

If a person has care and support needs as defined in the Care Act 2014,concerns around coercion may constitute a safeguarding issue, and a safeguarding concern should be raised through the appropriate channels.

Disguised compliance

This involves parents, carers and people using services giving the appearance of co-operating or being pleasant with professionals to avoid raising suspicions and allay concerns.

In adults, it could be a sign of a cognitive impairment or issues with their executive functioning or other illness (such as delirium caused by urinary tract infection) that may affect their capacity to carry out certain tasks. However, they want to hide this from professionals and their family, as they do not want to show their loss of independence.

If a person is not being taken to planned health and social care appointments or not taking, and not ordering of medication prescribed by the GP, this can be a sign of domestic abuse. Finances may also be a factor when paying for care services, the person may seem disorganised with finances or unable to pay when they are on the relevant benefits.

Being professionally curious and asking additional questions can support you in your practice. This can include having to ask difficult questions or gently challenge a person to achieve the best outcome for them (see also Professional Curiosity chapter).

Trust

A person may feel anxious about dealing with staff from Adult or Children’s Social Care or any other interested agency, so ensure that the person has access to independent support, advice or advocacy in these circumstances (see also Independent Advocacy chapter).

Other factors which professionals may find more complex when assessing capacity include:

Fluctuating capacity

This may occur due to the nature of the condition a person has. In these circumstances it is important assess over a period of time (at different times of the day), and to consider whether the decision to be made is ‘one off’ or ‘repeated decisions’. A person presenting with fluctuating capacity will need regular reviews of their decision-making ability.

Executive functioning

A person may give superficially coherent answers to questions but be  unable to follow through the actions (they can ‘talk the talk, but not walk the walk’). In these circumstances ask if the person is able to use/weigh the information given? Are they able to identify the possible risks and understand the consequences of their behaviour?

Refusal to participate in the capacity assessment

A person may decline to take part in a capacity assessment. It is important to understand if they are unwilling or unable to take part. Has the person been involved in discussions about why the assessment is being undertaken? What has been done to engage the person? Are there other people who could support? Is there any coercive or controlling behaviour on the part of a third party? If the risks are high, then an application to the Court of Protection may be needed to decide whether the person has or lacks capacity to make the relevant decision.

7. Best Interests

The MCA Code of Practice provides a checklist of factors that decision-makers must work through in deciding what is in a person’s best interests. The person’s current wishes and feelings should be taken into consideration, as well as any known previous wishes and feelings. Carers and family members also have a right to be consulted.  This consultation does not have to be in the format of a formal meeting; it can be through one to one discussions, group discussions, by telephone or in person.

As MCA is timely and decision specific, it is important to ensure that decisions are taken promptly, and unless absolutely necessary, arranging a best interests meeting should not delay the outcome of making a decision in the person’s best interests. Best interests meetings should only be held in relation to complex decision making.

7.1 Encourage participation

• Do whatever is possible to permit and encourage the person to take part or to improve their ability to take part on making the decision;
• Identify all relevant circumstances;
• Try to identify all the things that the person who lacks capacity would take into account if they were making the decision or acting for themselves.

7.2 Find out the person’s views

Try to find out the views of the person who lacks capacity, including:

• The person’s past and present wishes and feelings – these may have been expressed verbally, in writing or through behaviour or habits;
• Any beliefs and values (e.g., religious, cultural, moral or political) that would be likely to influence the decision in question;
• Any other factors the person themselves would be likely to consider if they were making the decision or acting for themselves.

7.3 Avoid discrimination

Do not make assumptions about someone’s best interests simply on the basis of the person’s age, appearance, condition or behaviour

7.4 Assess whether the person might regain capacity

Consider whether the person is likely to regain capacity (e.g., after receiving medical treatment). If so, can the decision wait until then?

7.5 If the decision concerns life-sustaining treatment

Do not be motivated in any way be a desire to bring about the person’s death. You should not make assumptions about the person’s quality of life.

7.6 Consulting others

If it is practical and appropriate to do so, consult other people for their views about the person’s best interests and to see if they have any information about the person’s wishes and feelings, beliefs and values.  In particular, try to consult:

• Anyone previously named by the person as someone to be consulted on either the decision in question or on similar issues.
• Anyone engaged in caring for the person, close relatives, friends or others who take an interest in the person’s welfare, for example, biological/non-biological family, next of kin, nearest relative, GP, social walker, nurse and any other allied health professional (physiotherapist, occupational therapist, speech and language therapist).
• Any attorney appointed under a Lasting Power of Attorney or Enduring Power of Attorney made by the person.
• Any deputy appointed by the Court of Protection to make decisions for the person

For decisions about major medical treatment or where the person should live and where there is no-one who fits into any of the above categories, an Independent Mental Capacity Advocate (IMCA) must be consulted. See also Independent Mental Capacity Advocate Service chapter.

8. Capacity and Covert Medication

Covert medicines should only be used in exceptional circumstances and, where it is considered to be necessary, in accordance with the Mental Capacity Act. Covert medication is an interference with an individual’s right to respect for private life under Article 8 of the ECHR and such treatment must be administered in accordance with the law and a procedure that guarantees proper safeguards. Treatment without consent is also potentially a restriction contributing to the objective factors creating a deprivation of liberty within the meaning of Article 5 of the Convention. Medication without consent and covert medication are aspects of continuous supervision and control that are relevant to the existence of a deprivation of liberty and a consideration of the principle of less restriction and how that is to be achieved must be considered. See also Promoting less restrictive practice: reducing restrictions tool for practitioners (LGA and ADASS).

The issue of covert medication is a best interests specific decision with significant implications. An example would be someone with a learning disability who lacks capacity to make a decision about treatment for a serious heart condition. The best interests decision is to give the medication in the least restrictive way e.g. mixed with food or drink. For covert medication to be given it would first need to be established that the person concerned lacks capacity to consent to taking the medication.

Disguising medicine in the absence of informed consent maybe regarded as deceptive. However, a clear distinction should always be made between:

• Those patients/clients who have the capacity to refuse medication and whose refusal should be respected; and
• Those who lack this capacity.

A further distinction should be made between:

• Those for whom no disguising is necessary because they are unaware that they are receiving medication; and
• Others who would be aware if they were not deceived into thinking otherwise.

As a general principle, by disguising medication in food or drink, the person is being led to believe that they are not receiving medication, when in fact they are. The staff member will therefore need to be sure that what they are doing is in the best interests of the patient/client and be accountable for the decision. Such treatment must be necessary in order to:

• Save life; or
• Prevent deterioration; or
• Ensure an improvement in the patient’s/client’s physical or mental health.

In the circumstances in which covert administration is agreed as the best interests plan, the following should be taken into account:

• The decision to administer a medication covertly must not be considered routine, and should only ever be a contingency measure and decisions should be made for each individual medication.
• The patient/client must have been assessed for capacity under the Mental Capacity Act and this should be clearly documented..
• Where incapacity is identified, the best interests of the patient/client must be considered.
• Any decision to administer a medication covertly should only be made after full consultation with the multi-professional clinical team (especially the pharmacist), carers, relatives, the relevant person’s representative and advocates. If there is no agreement, there should be an application to the Court of Protection.
• Review all medication.
• Is the medication still required?
• Is the medication available in an alternative form (e.g., liquid) that would be acceptable? A change of medication will trigger a review.
• Consider palatability, safety and stability of medicines. For stability, consider whether the chemical components would be altered should it be crushed or capsule split. Where needed, obtain advice from the Pharmacy Department
• Regular reviews must be undertaken in consultation with the multi-professional clinical team (especially the pharmacist), carers, relatives, the relevant person’s representative and advocates. A review date must be discussed and documented when the initial decision to administer medication covertly is made. The frequency of the review should also be documented at this time.
• The rationale, decision and action taken to administer medication covertly must be clearly documented in the person’s medical records and include all the names of the parties concerned. This documentation should be easily accessible on viewing any of the person’s records within the care/nursing home/community.
• Regular attempts should be made to encourage the person to take their medication, preferably by the team member who has the best rapport with them. Equally, the person’s relative, friend or advocate may be asked to assist with the administration of the medication

In summary, where there is a best interests decision to administer medication covertly, this should occur only in exception cases after consideration of the least restrictive options. The rational for this decision and its review date must be documented.

See also Covert Administration of Medicines (CQC)

9. Taking Photos / Audio / Visual Recording

9.1 Consent

Informed consent should be gained from all people before they are photographed. This should be gained by the person who requests the images, and should be documented. The person should be competent to take the particular decision, have received enough information to take it, and not be acting under duress. The requester should explain to the person, and their carers/family members:

• The purpose of the photographs;
• Where the images will be stored;
• How the images will be used.

Generally, most health and care records are kept for eight years after the person’s last treatment. It should be made clear to them that refusal for the pictures to be used for teaching or publication will not affect any care.)

9.2 Mental capacity and consent for photography

Where people who appear to lack mental capacity to give informed consent need to have photographs taken, family, carers, or an Independent Mental Capacity Advocate (IMCA) may be able to help professionals communicate with a person to establish their wishes. If a person has been assessed as lacking mental capacity to give consent, professionals can still request recording of a patient if it is felt to be in their best interests.

10. Independent Mental Capacity Advocate (IMCA)

See also Independent Mental Capacity Advocate Service chapter.

An IMCA is someone appointed to support a person who lacks capacity but has no one to speak for them. The IMCA makes representations about the person’s wishes, feelings, beliefs, and values, at the same time as bringing to the attention of the decision-maker all factors that are relevant to the decision. The IMCA can challenge the decision-maker on behalf of the person lacking capacity if necessary.

Arrangements must be made to allow the IMCA to meet the person concerned and see relevant health, social services and care records. This is to enable the IMCA to perform the function of representing and supporting the person who lacks capacity.

The Mental Capacity Act places an obligation on local authorities and/or NHS bodies to instruct and consult an IMCA when making decisions for a person who lacks capacity regarding the following areas:

• An NHS body is proposing to provide serious medical treatment; or
• An NHS body or local authority is proposing to arrange accommodation (or change of accommodation) in hospital or a care home; and
  • The person will stay in hospital longer than 28 days, or
  • They will stay in the care home for more than 8 weeks.

An IMCA may be instructed to support someone who lacks capacity to make decisions concerning:

• Care reviews, where no-one else is available to be consulted;
• Safeguarding adults cases, whether or not family, friends or others are involved;
• Where disagreements are noted from concerned parties, the local authority may also instruct an IMCA to engage in a case.

The current IMCA service is provided by Ncompass.

IMCAs:

• Support and represent the person in the decision making process;
• Try to work out what the person would choose if they were able to make the decision themselves;
• Speak up for a person in talks and meetings where decisions are being made;
• Consult with others in the person’s life, including medical staff;
• Look for alternative courses of action (least restrictive option);
• Ensure the decision complies with the MCA and it is in the person’s best interests;
• Prepare a report (decision maker has a legal duty to consider this); and
• Challenge the decision (including capacity), if necessary.

A referral for an IMCA can only be made by a Health or Social Care professional. The Bury Advocacy Hub offers a single point of contact for all advocacy enquiries in the area. For more information or to make a referral:

Telephone: 0300 3030 206

Email: [email protected]

11. Restraint

The Mental Capacity Act does not authorise restraint of a person unless two additional conditions are met: (see section 6(4) of the MCA).

• Reasonable belief that restraint is necessary to prevent harm to the person who lacks capacity;
• The restraint must be proportionate to the likelihood and seriousness of the harm.

Restraint is defined as:

the use, or threat to use, force to secure the doing of an act which the person resists or restricting the liberty of movement whether or not person resists.

In line with the rest of the MCA, the restraint must also be in the person’s best interests and consider if there is a less restrictive alternative.

Section 6(5) makes it clear that it does not provide any protection for an act depriving a person of their liberty within the meaning of Article 5(1) of the European Convention on Human Rights.

It is important that in circumstances where a person who lacks capacity is refusing or resisting care or treatment, discussions and concerns should be escalated to ensure that appropriate care is delivered. However, where immediate risk is apparent intervention should occur under common law.

12. Protections and Safeguards

12.1 Lasting Power of Attorney (LPA)

The MCA allows a person to appoint an attorney to act on their behalf if they should lose capacity in the future. The MCA allows people to let an attorney make health and welfare decisions. In cases of disagreement, this can be challenged through the Court of Protection.

You can search online to see if someone has a registered attorney or deputy before giving them the power to make decisions.

A Lasting Power of Attorney (LPA) can only be made while the person granting the power is in a position to make their own decisions. If a person lacks capacity to make their own decisions, then an LPA cannot be granted and a court order will be required.

An LPA can be used only when it has been registered by the Office of the Public Guardian. Conditions of use and restrictions can be placed in the LPA:

• It can only be activated when an individual has lost capacity to deal with their affairs;
• Identifies which decisions can and cannot be made.

The person appointed is not allowed to make decisions that will benefit them, and they must always act in the person’s best interests.

A person can be appointed as an attorney if they are over 18, including a relative, a friend, a professional (like a solicitor), or husband, wife, or partner.

A person cannot be appointed as an attorney to deal with finance and property matters if they are under 18, unable to make their own decisions or subject to a debt relief order or currently bankrupt.

For more information, see Working with People who have Lasting Power of Attorney.

12.2 Enduring Powers of Attorney

All care staff should be aware that Existing Enduring Powers of Attorney (EPAs) will continue following implementation of the Act. They are not automatically replaced by LPAs nor will EPAs need to apply to become LPAs.

12.3 Court Appointed Deputies

The MCA provides for a system of court appointed deputies. Deputies are able to make decisions on welfare, healthcare and financial matters as authorised by the Court of Protection but will not be able decide to refuse consent to life-sustaining treatment. They will only be appointed if the Court cannot make a one-off decision to resolve the issues.

12.4 Advance Decisions to Refuse Treatment

People can make a decision in advance to refuse treatment if they should lose capacity in the future. The decision must be made by a person who is 18 or over at a time when the person has capacity to make it, and must specify the treatment that is being refused. The person may withdraw this advance decision at any time by any means except in the case of life-sustaining treatment where the withdrawal must be in writing.

If there is doubt or dispute about the existence, validity or applicability of an advance decision then it should be referred to the Court of Protection for determination.

The advance decision to reduce treatment does not supersede the powers to give medical treatment under Section 3 of the Mental Health Act.

12.5 Court of Protection and Office of the Public Guardian

The MCA provides for two public bodies to support the statutory framework:

• The Court of Protection – a specialist Court which has jurisdiction relating to the MCA and will be the final arbiter for capacity matters. It has its own procedures and nominated judges who appoint deputies to make decisions in the best interest of those who lack capacity to do so.  For further information and guidance, see: Court of Protection (HM Courts and Tribunal Service).
• The Office of the Public Guardian – is the registering authority for LPAs and deputies. They supervise deputies appointed by the Court and provide information to help the Court make decisions.  They also work together with other agencies such as the Police and social care to respond to any concerns raised about the way in which an attorney or deputy is operating. For more information see Office of the Public Guardian.

13. Mental Health Offences

The Mental Capacity Act created the criminal offences of ill-treatment or wilful neglect under Section 44 based on existing principles (under Section 127(1) of the Mental Health Act 1983).

The elements to be considered about the alleged offender are:

• is the carer of the person in question OR is the power of attorney OR is a court-appointed deputy.
• reasonably believes the person lacks capacity (or they do lack capacity).
• that they ill-treat or wilfully neglects the person.

Ill-treatment will require more than trivial ill-treatment and will cover both deliberate acts of ill-treatment and also those acts which could be considered to be reckless.

Wilful neglect will require a serious departure from the required standards of treatment and usually requires a person has deliberately failed to carry out an act that they were aware they were under a duty to perform. In consequence, defences could be raised to the effect that the elements of the offence set out in Section 44 are not made out in the following terms:

• there is no Section 44 relationship (no care/power of attorney/court-appointed role);
• the person does not lack capacity and/or there was no reasonable belief in such a lack of capacity;
• there was no ill-treatment or wilful neglect.

If ill-treatment or wilful neglect is suspected, the police will consider all available evidence to them at the time, and apply the threshold test on a case-by-case basis to make a decision to put the case forward to the Crown Prosecution Service or to refer to partner agency for further investigation.

The Criminal Justice and Courts Act 2015 (CJCA 2015) makes it a criminal offence for a care worker to ill-treat or wilfully neglect an individual. For more information see Ill Treatment and Wilful (Deliberate) Neglect.

If any partner agency suspects ill-treatment or wilful neglect, it is their responsibility to make a referral to the police.

14. Deprivation of Liberty Safeguards (Adults over 18 years)

The MCA provides a statutory framework for acting and making decisions on behalf of those who lack the capacity to make those decisions for themselves.

The deprivation of liberty safeguards (DoLS) aim to prevent the unlawful detention of adults, in hospitals and care settings, who lack capacity to choose where they live and/or to consent to care and treatment.

The Supreme Court has confirmed that to determine whether a person is deprived of their liberty, there are two key questions to ask. These are described as the ‘acid test’:

• Is the person free to leave?
• Is the person subject to continuous supervision and control?

Whether or not the person objects to the arrangements, and even though the arrangements may be considered to be in the person’s best interest, are irrelevant.

This means that if a person lacks capacity to consent to their care and/or treatment arrangements, is not free to leave and is subject to continuous supervision and control, they are deprived of their liberty.

The Supreme Court judgement also advises that a low threshold should be used in applying the ‘acid test’ given the vulnerability of people who are likely to be deprived of their liberty and the intention that the deprivation of liberty safeguards should be protective of such people. The deprivation of liberty should only be authorised for the minimum time possible.

The case of R (Ferreira) v HM Senior Coroner for Inner South London case established that a person is generally not deprived of their liberty when they are receiving life-saving treatment for a physical illness in an intensive care unit (ICU). The case was named after Maria Ferreira, a woman with Down’s syndrome and learning disabilities who died in 2013 after being admitted to ICU with pneumonia and heart problems.

A deprivation of a person’s liberty must be authorised in accordance with the law in one of the following ways:

• Residential care homes/nursing homes – authorisation via deprivation of liberty safeguards.
• Mental Health Wards/Hospitals – authorisation via the Mental Health Act on psychiatric wards or application for deprivation of liberty safeguards.
• Acute Hospitals – authorisation via deprivation of liberty safeguards.

In other settings e.g. community settings such as home, supported living placements/extra care such as adult family placements; authorisation is via the Court of Protection (you will need to obtain specific legal advice regarding the steps you need to take in these circumstances).

Anyone can request a deprivation of liberty assessment, but in general it will be the role of the Managing Authority (care home or hospital) to alert the Supervisory Body (Bury Council) who instruct and authorise assessments from a best interests assessor and Mental Health Section 12 assessor.

Everyone on a DoLS authorisation will have a representative, either a family member or a friend OR a paid representative (know as the relevant persons representative) if no family/friends are identified to take on this role.

Independent Mental Capacity Advocates (IMCAs) will represent a person being assessed by a best interests assessor if they have no friends or family to represent them. An Independent Mental Capacity Advocate will also be available to provide support to family or friends acting as representatives (See Section 10, Independent Mental Capacity Advocate).

A deprivation of liberty can occur in community and domestic settings where the State is responsible for imposing such arrangements. This will include a placement in a supported living arrangement. Hence, where there is, or is likely to be, a deprivation of liberty in such settings, this should be authorised by the Court of Protection.

Examples of liberty restricting measures include when:

• a decision on where to live is being taken by others;
• a decision on contact with others not being taken by the person;
• restrictions on developing sexual relations;
• doors of the property locked and/or bolted for security reasons or to prevent the person from leaving;
• a member or member(s) of staff accompanying the person to access community support and meet their care needs;
• access to the community is limited by staff availability;
• mechanical restraint, such as wheelchairs with a lap strap or specialist harness;
• varying levels of staffing and frequency of observation by staff;
• provision of ‘safe places’ or ‘chill out’ rooms or spaces during the day or night from which the person cannot leave of their own free will;
• restricted access to personal allowances;
• searching of the person and/or their belongings;
• restricted access to personal belongs to prevent harm;
• medication with a sedative or tranquilising effect;
• physical restraint/intervention such as with personal care tasks, breakaway or block techniques, distraction methods, staff withdrawing, physical touches or holds (e.g., ‘Team Teach’ methods);
• restricted access to modes of social communication such as internet, landline or mobile telephone or correspondence;
• positive behavioural reward systems to reward’ ‘good’ behaviour;
• disciplinary penalties for poor behaviour;
• restricting excessive pursuance of activities;
• lack of flexibility in terms of having timetabled, set mealtimes, expected sleep times;
• managing food intake and access to it;
• police called to return the person if they go missing;
• restricted access to parts of the property such as the kitchen or certain cupboards therein to minimise health and safety risks.

15. How does the Mental Capacity Act Apply to Children and Young People?

See also Mental Capacity Act Code of Practice, chapter 12.

The MCA applies to young people aged 16+ with capacity issues. It can also apply to under 16’s in the following circumstances:

• Where the child has an impairment of mind or brain and lacks capacity currently and is likely to still lack it for financial purposes at 18 years (section 2.6 of the MCA);
• Offences of ill treatment or wilful neglect of a person without capacity can also apply to victims younger than 16 (section 44 of the MCA).

Care and treatment of children under the age of 16 is generally governed by common law principles.

Most of the Act applies to young people aged 16-17 years, who may lack capacity within section 2(1) to make specific decisions. There are three exceptions:

• Only people aged 18 and over can make a Lasting Power of Attorney.
• Only people aged 18 and over can make an advance decision to refuse medical treatment.
• The Court of Protection may only make a statutory will for a person aged 18 and over.

16. Deprivation of Liberty (Young People)

A ‘young person’ refers to a 16- or 17-year-old.  Article 5 ECHR  is relevant to young persons who lack capacity to decide where to reside in order to receive care and treatment.

DoLS relating to adults is very different to deprivation of liberty applied to young people. DoLS for adults refers to the process of applying and authorising safeguards for people who are deprived of their liberty in care settings and hospitals. The principle of deprivation of liberty and young people relates predominantly to those 16 or 17 year olds who lack capacity and are placed in foster homes, children’s homes and residential special schools, have liberty restricting measures put in place and meet the criteria for the nuanced ‘acid test’ (the young person is under the complete supervision and control of those caring for them and is not free to leave the place where they live). Neither DoLS nor the Mental Health Act 1983 are available to authorise deprivations of liberty here, so judicial authorisation will be required. The Court of Protection can authorise the deprivation of liberty of young people who lack the relevant mental capacity. The inherent jurisdiction of the High Court is also available, regardless of the person’s age (see also the chapter on the Inherent Jurisdiction of the High Court).

If a young person is deprived of their liberty, the consent of those with parental responsibility cannot be relied upon to authorise it as the decision falls outside the scope of parental responsibility. This would apply as equally to local authorities sharing parental responsibility under a Care Order as it does to parents.

If you are supporting a young person who is 16 or 17 years old who you have assessed as lacking capacity to make decisions about their care and treatment and you believe they are being deprived of their liberty, discuss the case with your manager as further legal advice will be needed.

The UN Convention on the Rights of the Child (UNCRC) outlines the fundamental rights of very child. The Convention has 54 articles that cover all aspects of a child’s life. Article 3 states the best interests of the child must be a top priority in all decisions and actions that affect children.

17. Excluded Decisions

The MCA sections 27-29 lists certain decisions that can never be made on behalf of a person who lacks capacity. They are as follows:

• Section 27 Family relationships etc.

(1) Nothing in this Act permits a decision on any of the following matters to be made on behalf of a person –

(a) consenting to marriage or a civil partnership,

(b) consenting to have sexual relations,

(c) consenting to a decree of divorce on the basis of two years’ separation,

(d) consenting to the dissolution order being made in relation to a civil partnership on the basis of two years’ separation,

(e) consenting to a child’s being placed for adoption by an adoption agency,

(f) consenting to the making of an adoption order,

(g) discharging parental responsibilities in matters not relating to the child’s property

(h) giving consent under the Human Fertilisation and Embryology Act 1990(c.37)

• Section 28 Mental Health Act matters

(1) Nothing in this Act authorises anyone –

(a) To give a patient medical treatment for mental disorder, or

(b) To consent to a patient being given treatment for mental disorder,

If, at the time when it is proposed to treat the patient, his treatment is regulated by Part 4 of the Mental Health Act 1983.

• Section 29 Voting rights

(1) Nothing in this Act permits a decision on voting, at an election for any public office or at a referendum, to be made on behalf of a person.

• Section 62 Unlawful killing or assisting suicide

For the avoidance of doubt, nothing in the Act is to be taken to affect the law relating to murder, manslaughter or assisting suicide.

18. Procedure

These procedures apply to all staff who are working with adults who may lack the capacity to consent to their care or treatment, including in circumstances that might be considered a deprivation of liberty.

18.1 Assessing mental capacity

• Firstly, adhere to MCA Policy key five principles;
• Assume capacity unless it is proved otherwise;
• Give all appropriate help before concluding someone cannot make their own decisions;
• Accept the right to make what might be seen as eccentric or unwise decisions;
• Always act in the best interests of people who do not have mental capacity;
• Decisions made should be the least restrictive of their basic rights and freedoms.

When to assess capacity?

• Ask ‘do you have reasonable cause to doubt this person has capacity to make this specific decision?’ and record in your case notes.
• You suspect a person has an impairment or disturbance of mind/brain that is affecting their ability to make the decision under consideration.
• The person is unable to make a specific decision due to the impairment and the functioning or disturbance of mind/brain at the time the decision needs to be made.
• If there is more than one decision to be made then a capacity assessment should be done for each decision.

Who should assess capacity?

• The person directly concerned with the individual at the time – the Code of Practice is not prescriptive about this.
• For more complex situations, it may be another professional depending on the situation.
• For example, if it is a ‘clinical’ decision about medical treatment, a doctor/consultant/nurse should assess. If it is a decision to go into a care home, a social worker would be best placed.  If it is a legal decision (sign a Will or LPA), a solicitor should assess
• Assess capacity.

If the person has capacity?

• Person must be able to make a decision for themselves.
• Given the learning from previous Safeguarding Adult Reviews, it is vital that professionals indicate that they have considered someone’s capacity and recorded that the person has the capacity to make that decision if they have considered it. This does not remove any other professional duties that you have to protect people and keep them safe from risk or harm via good risk assessment / good risk appraisal.

If the person is lacking capacity – best interests decision making

• Complete best interests decision.
• Consider relevant party’s best interest consultation.
• Does the person require representation from an IMCA?
• Implement best interests decision.

Decision makers for best interests

• The MCA allows Lasting Powers of Attorneys or Court Deputies to be granted if required.
• The statutory best interests checklist should be considered.
• The decision maker may consider the need for an IMCA.
• Can the decision be considered at a later date?
• Meeting or discussion?
• Best interests guidance.
• In very complex cases, you may need to discuss with line manager and/or legal team

 Where and how is the assessment recorded

Capacity assessments must be decision and time specific, evidence based, person-centred and non-judgmental. Professionals need to engage with the person to understand who they are, free of pre-judgment and stereotype.

The Mental Capacity Assessment/Best Interests Decision form is to be completed or written in the person’s records (refer to your own agencies recording forms).

The important factors to consider when recording:

• Be clear about the capacity decision that is being assessed.
• Ensure that the person (and you) have the concrete details of the choices available (e.g., between living in a care home and living at home with a realistic package of care).
• Identify the salient and relevant details the person needs to understand/comprehend (ignoring the peripheral and minor details).
• Demonstrate the efforts taken to promote the person’s ability to decide and record this. One of the founding principles of the Mental Capacity Act is maximisation of capacity, this includes ensuring that communication and the way information is presented around the capacity decision is given to the individual, to ensure that their engagement is maximised throughout the decision and best interest process. For example this might include consideration of cultural needs, use of translators, use of speech and language boards, speech and language therapists.
• Assessment is not necessarily a one-off matter, record that you have taken the time to gather as much evidence as is required to reach your conclusion – including, for instance, returning to have a further conversation with the person or obtaining corroborative evidence.
• Verbatim notes of questions and answers can be particularly valuable in the record of the assessment.
• Do not assert an opinion unless it is supported by a fact.
• You must also be prepared to justify a decision not to carry out an assessment where, on the face of it, there appears to be a proper reason to consider that the person is able to make the specific decision.  If the person is deemed to have capacity, but the risks are high and a multi-agency approach is required, the Multi-Agency Risk Management (MARM) Process for Oversight of Adults at High Risk should be followed
• Whilst the presumption of capacity is a foundational principle, you should not hide behind it to avoid responsibility for a person. This can happen most often in the contact of self-neglect where it is unclear whether or not the person has capacity to make decisions.
• If you are assessing a person’s capacity to make a number of different decisions, it is important to take a step back and ask before reaching a conclusion as to the person’s decision-making capacity in relation to each decision.
• Evidence each element of your assessment:

(i) Why could P not understand, or retain, or use/weigh, or communicate in spite of the assistance given?

(ii) What is the impairment/disturbance? Is it temporary or permanent?

(iii) How is the inability to decide caused by the impairment/disturbance (as opposed to something else)?

(iv) Why is this an incapacitated decision as opposed to an unwise one?

Additional guidance is available from 39 Essex Chambers in relation to Carrying Out and Recording Capacity Assessments and Relevant Information for Different Categories of Decision.

19. Information Sharing and Confidentiality

The Data Protection Act is not a barrier to sharing information but provides a framework to ensure that personal information about living persons is shared appropriately. Be open and honest with the person (and/or their family where appropriate) from the outset about why, what, how and with whom information will, or could be shared, and seek their agreement, unless it is unsafe or inappropriate to do so. The Act allows for the sharing of data where it is necessary in the public interest or for the performance of an official safeguarding function by the organisation in line with Article 6 (1)(e) GDPR and as such consent from the adult is not required.

Circumstances include:

• Where one or more partners have reason to believe that an adult is at risk of death or serious injury as a result of actions/inaction by the adult and/or the actions of others.
• The sharing of information is in the public interest and it outweighs the public interest served by protecting confidentiality – e.g., where serious harm may be prevented.
• Other people are at risk which may include children or other adults with care and support needs.
• An organisation/practitioner feels that there has not been an appropriate response to a safeguarding concern and information sharing is required as part of the escalation process.
• The risk to the adult and/or others is considered to be high and meets the criteria for a multi-agency risk assessment under the Multi Agency Risk Management Strategic Risk Panel.
• Where a serious crime has been committed.
• Where the person lacks the mental capacity to make the decision – this must be properly explored and recorded in line with the Mental Capacity Act

For more information see: Information Sharing and Confidentiality

19.1 Third Parties

Sometimes, third parties may request information about a person who lacks capacity. Chapter 16 of the Mental Capacity Act Code of Practice offers general guidance. More specific advice can be obtained from your organisation’s legal service or from the Information Commissioner’s Office.

20. Resolving Disputes

There is no formal appeals process under the MCA. The MCA provides open, accessible decision-making and everyone who uses the MCA must be open to challenge. At times this can result in disputes. The decision-maker:

• Has the authority to make a decision about someone’s capacity and their best interests;
• Must follow the process to assess capacity;
• Must follow the best interests checklist to decide on someone’s best interests – this includes consulting other people such as professionals, family and friends and an Independent Mental Capacity Advocate (IMCA), if appropriate.

If the decision-maker follows these steps, they have the authority to make the decision. Other professionals may disagree with the decision-maker’s conclusion. It would be appropriate to discuss this openly, perhaps in a best interests discussion, to try to resolve any dispute. Within the best interests decision making process, the decision-maker has the final authority to make the decision.

Family, friends or an IMCA may disagree with professional decisions, or there may be disputes in someone’s circle of family and friends. A best interests meeting may offer a more formal way of involving family or friends in a decision and enable them to accept the decision.

If the decision-maker represents an organisation providing care, such as Bury Council, the NHS or a private provider, they need to demonstrate that the care provided by the organisation is better for the person than anything proposed by their family.

It may be possible to use mediation to enable people to consider a difficult decision. For advice contact National Family Mediation or other local services.

Whist the above is true, there are cases where a Section 21A appeal or an application to the Court of Protection may be required to ensure the best outcome for the individual is secure. The Court of Protection can make a decision in cases where it is not possible to resolve a dispute. A public authority should seek a Court determination if there is sustained dispute about a decision, although anyone can apply to the Court of Protection. Application to the Court of Protection should be a last resort. In these circumstances get advice from your organisations safeguarding adults and MCA/DoLS leads and the legal department.

21. Making a Complaint

Anyone can make a formal complaint about any services received. People who may lack capacity, or their family or friends, should be offered whatever support they need to make a formal complaint. Follow your organisation]s complaints procedure.

22. Further Information and Resources

Mental Capacity Act (SCIE)

Code of Practice: Mental Health Act 1983

Decision Making and Mental Capacity (NICE guidelines

MCA Toolkit (Bournemouth University)

Mental Capacity Act England and Wales (British Medical Association)

Deprivation of Liberty Safeguards (British Medical Association)

Carrying out and Recording Capacity Assessments (39 Essex Chambers)

Mental Health Law Online

Mental Capacity Law and Policy