Navigating health and social care often brings professionals and families into contact with vital legal frameworks designed to protect the rights and dignity of individuals who may lack mental capacity to make certain decisions. Two of the most significant protections within this legal landscape are the Mental Capacity Act (MCA) and Deprivation of Liberty Safeguards (DoLS). These frameworks are designed to ensure that individuals who cannot make certain decisions independently are protected from harm and unnecessary restrictions on their freedoms. In this blog post, we’ll dive deeper into these two legal safeguards, explore their application in real-world care settings, and look ahead to the changes that will come with the introduction of Liberty Protection Safeguards (LPS)

The Mental Capacity Act 2005: An Overview

The Mental Capacity Act 2005 applies to individuals in England and Wales and was designed to empower and protect people who may lack the mental capacity to make decisions about their care, treatment, or finances. This Act is particularly relevant for people with conditions like dementia, learning disabilities, mental health conditions, and acquired brain injuries, who may experience impaired capacity at various stages of their lives.

The Five Core Principles of the MCA

At the heart of the MCA are five key principles which guide how it is applied and ensure that individuals’ autonomy and rights are protected wherever possible (Department of Health, 2014):

1. Presumption of Capacity: Every adult is presumed to have capacity unless proven otherwise. This means the burden of proof is on those questioning an individual’s capacity.
2. Right to Make Unwise Decisions: People have the right to make decisions that may seem unwise. Choosing a risky option alone does not indicate a lack of capacity.
3. Support to Make Decisions: Before concluding that someone lacks capacity, all possible help should be offered to assist them in making their own decisions.
4. Best Interests: Any decisions made on behalf of someone who lacks capacity must be made in their best interests, considering their past and present wishes and feelings.
5. Least Restrictive Option: When decisions or interventions are required, they should restrict the individual’s rights and freedom as little as possible.

Assessing Capacity Under the MCA

The MCA outlines a specific, structured process to determine if someone lacks the capacity to make a particular decision. This process is based on four essential criteria (SCIE, 2019):

1. Understanding the Information: The individual must understand the information relevant to the decision.
2. Retaining the Information: The person must retain this information long enough to decide.
3. Weighing up the Information: They must be able to weigh the information, considering the consequences of different choices.
4. Communicating the Decision: The individual must communicate their decision, including gestures or sounds if verbal communication is not possible.

If the individual is unable to meet any of these criteria, they may be deemed to lack capacity for that particular decision, and appropriate support or intervention can be made in their best interests.

Deprivation of Liberty Safeguards (DoLS): Protecting Against Unlawful Detention

While the MCA provides the overall framework for assessing capacity, the Deprivation of Liberty Safeguards (DoLS) were introduced as an amendment to the MCA in 2009. These safeguards apply specifically to individuals in care homes and hospitals who are subject to restrictions or continuous supervision that limit their freedom, in order to ensure that such restrictions are legally justified, necessary, and in their best interests.

What Constitutes a Deprivation of Liberty?

A deprivation of liberty occurs when:

• The individual is under continuous supervision.
• They are not free to leave the setting.
• Their movements and freedoms are heavily restricted.

These conditions align with Article 5 of the European Convention on Human Rights (ECHR), which protects individuals’ right to liberty and security (Mental Health Foundation, 2022).

The DoLS Process in Practice

To legally authorize a deprivation of liberty, care providers must follow a structured application and assessment process:

1. Application for DoLS: Care homes and hospitals must apply to the local authority when they believe that restricting an individual’s liberty is necessary for their safety.
2. Independent Assessment: The local authority appoints a Best Interests Assessor (BIA) to evaluate whether the deprivation of liberty is necessary, proportionate, and in the person’s best interests. The BIA considers factors like the individual’s condition, the risks involved, and potential alternatives.
3. Regular Review: A DoLS authorization is only valid for a limited period, typically up to 12 months, after which it must be reviewed and renewed if necessary. This ensures that the person’s rights are consistently protected and that restrictions are only in place as long as absolutely required.

Liberty Protection Safeguards (LPS): What’s Changing?

Despite its importance, the DoLS framework has faced criticism for its complexity and limited scope. In response, the UK government has introduced the Liberty Protection Safeguards (LPS), which are set to replace DoLS in the near future.

The LPS aim to simplify the process of authorizing a deprivation of liberty and broaden its application beyond care homes and hospitals to include settings such as supported living and private residences. Additionally, under the LPS, individuals aged 16 and above will be eligible for protection, expanding the safeguards to younger individuals lacking capacity.

Key changes in the LPS include:

• Extended Eligibility: Unlike DoLS, the LPS will apply in settings outside care homes and hospitals.
• Streamlined Process: The process will involve fewer professionals, reducing bureaucracy and increasing efficiency.
• Person-Centred Approach: The LPS emphasizes a more individualized assessment, including taking the person’s wishes and feelings into account.

This updated framework reflects a modern approach to ensuring that individuals’ rights to liberty and autonomy are respected in all care settings. Although implementation has been delayed, the LPS represents a positive shift towards person-centred care that aligns with human rights standards (Gov.uk, 2021).

Final Thoughts

The Mental Capacity Act and Deprivation of Liberty Safeguards represent essential protections for individuals who may lack capacity to make significant decisions for themselves. These frameworks ensure that decisions are made ethically and in a way that respects individuals’ rights, dignity, and autonomy. For anyone involved in health or social care, understanding and applying these principles is crucial in delivering compassionate, rights-based care.

With the anticipated arrival of the Liberty Protection Safeguards, the landscape of care will evolve, potentially making these protections more accessible and streamlined. As these legal frameworks continue to develop, their focus remains steadfast on upholding the rights and freedoms of society’s most vulnerable individuals.