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The 2005 Mental Capacity Act, implemented in 2007, aimed to legally protect the rights of people unable to make some or all of their own decisions and outline how decisions should be made for those lacking capacity. A 2013 review of the Mental Capacity Act established that the act was not being implemented as intended, particularly in relation to the deprivation of liberty, the legal authority to detail an individual under certain criteria.1 As a result, a significant number of individuals have been and are at risk of being deprived of their liberty without legal protection and due consideration.
These failings were challenged in two key court cases. Analysis of these cases has highlighted the practical changes required to ensure the Mental Capacity Act and Deprivation of Liberty Safeguards (DoLS) are accurately implemented, specifically through better identification of vulnerable individuals, a thorough assessment of their capacity and formalising the legal paperwork.
Changing legislation and legal challenges mean that an increasing number of hospital patients will require consideration of the Mental Capacity Act and DoLS during their hospital stay. To ensure that any patients who may not have full capacity to make their own decisions are appropriately and legally treated it is vital that all hospital doctors understand the crucial aspects of these changes.
What are the Mental Capacity Act and the deprivation of liberty safeguards?
The 2005 Mental Capacity Act was implemented in 2007 to protect the rights of people to make their own decisions and outlined how decisions should be made for those lacking capacity.2 The Mental Capacity Act states that someone lacks mental capacity for a particular decision if they cannot:
- Understand the information given to them
- Retain that information long enough to make a decision
- Weigh up the information and understand the consequences of the decision
- Communicate their decision by any means.
If a person is able to meet all four of these criteria they cannot be said to lack capacity and so a deprivation of liberty authorisation cannot be used.A deprivation of liberty occurs when a person who lacks capacity about where to stay or how to be treated is kept under continuous supervision and is not free to leave. Staff in institutions such as hospitals should always aim to care for someone in a way that does not deprive them of their liberty. However, if this is not possible the DoLS can be put in place. These are part of the 2005 Mental Capacity Act and aim to ensure that people in hospitals, care homes and supported living are cared for in a way that does not inappropriately restrict their freedom if there is not a more suitable alternative. The safeguards aim to ensure that these institutions only deprive someone of their liberty where it is in the best interest of that person, and when required to do so in a safe and correct way.
How to apply the Mental Capacity Act and deprivation of liberty?
Who needs safeguarding?
What does this mean for hospital staff?
What does the future hold for deprivation of liberty?
Conflict of interest: none declared
References:
1.Select Committee on the Mental Capacity Act 2005. Mental Capacity Act 2005: post-legislative scrutiny. London: The Stationary Office Limited 2014. www.publications.parliament.uk/pa/ld201314/ldselect/ldmentalcap/139/139.pdf. (Accessed 9/02/15)
2.Nicholson T, Cutter W, Hotopf M. Assessing mental capacity: the Mental Capacity Act. BMJ 2008; 336: 322
3.P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & Another; P and Q (by their litigation friend, the Official Solicitor) v Surrey County council. [2014] UKSC 19
4.European Convention on Human Rights (ECHR). Convention for the Protection of Human Rights and Fundamental Freedoms. 2010
5.Cairns R, Hotopf M, Owen G, Deprivation of liberty in healthcare. BMJ 2014; 348: g3390
6.Evans S. Deprivation of Liberty Newsflash – Have you changed your approach? Hempsons 2014 http://www.hempsons.co.uk/news/newsflash-deprivation-liberty-changed-approach/ (Accessed 9/02/15)
7.Health & Social Care Information Centre. Mental Health: Use of Deprivation of Liberty Safeguards continues to rise. 2013. http://www.hscic.gov.uk/article/3401/Mental-Health-Use-of-Deprivation-of-Liberty-Safeguards-continues-to-rise (Accessed 9/02/15)
8.Raymont V, Bungley W, Buchanan A, et al. Prevelance of mental incapacity in medical inpatients and associated risk factors: cross-sectional study. Lancet 2004; 364: 1421-279.Department of Health. Deprivation of Liberty Safeguards (DoLS). 2014. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/300106/DH_Note_re_Supreme_Court_DoLS_Judgment.pdf (Accessed 9/02/15)