If you have difficulty making important decisions, or need to make a decision on someone else's behalf, the Mental Capacity Act can protect you.
People can have difficulty making important decisions for various reasons. This could be because of:
- a learning disability
- dementia
- a mental health problem
- a head injury or stroke
The lack of capacity may be permanent or temporary – it could be the result of an accident or from the effects of drugs or alcohol.
Sometimes it is necessary for someone to make an important decision on someone else’s behalf. To make sure this happens fairly, with both parties protected, a new law called the Mental Capacity Act has come into force.
The Mental Capacity Act aims to make sure that people who are not able to make important decisions on their own are given all the help and support possible to enable them to make their own decisions – or to be as involved as possible in the process.
The Act helps to make clear:
- who can take decisions for another person
- in which situations they can do this, and
- how they should do it
The nationally agreed Mental Capacity Act Code of Practice provides guidance on how the Mental Capacity Act 2005 works on a day-to-day basis. It has case studies and explains in more detail what the key features of the law are.
The Independent Mental Capacity Advocate (IMCA) service
A new service was created under the Mental Capacity Act 2005 called the Independent Mental Capacity Advocate (IMCA) service. The purpose of the IMCA service is to help and provide independent safeguards for particularly vulnerable people who lack capacity to make important decisions about serious medical treatment and changes of accommodation, and who have no family or friends that it would be appropriate to consult about those decisions. IMCAs will work with and support people who lack capacity, and represent their views to those who are working out their best interests. In Leeds the statutory roles of the IMCA service have been expanded to incorporate discretionary roles including safeguarding investigations and care reviews.
The introduction of the Deprivation of Liberty Safeguards (DoLS) also expanded the statutory role of the IMCA service to include providing support for DoLS assessments. It also created a new role for a Relevant Person’s Representative (RPR) to support people who are subject to a DoLS authorisation. Where a person subject to an authorisation has no family, friends or carer able to fulfil this role, this service is commissioned from a RPR service provider e.g. from an advocacy service.
In Leeds both the IMCA and RPR service are commissioned from Articulate Advocacy Leeds.
Deprivation of Liberty Safeguards (DoLS)
On 1st April the Deprivation of Liberty Safeguards become an official amendment to the Mental Capacity Act 2005.
The safeguards protect people in residential care who suffer from a mental disorder or severe and ongoing mental health problems and lack the capacity to give consent to arrangements for their care or treatment.
They also provide a lawful procedure to deprive a person of his or her liberty where it is necessary to protect them from harm to themselves, but this must be in their best interests and where no less restrictive solution is possible
The new safeguards apply to residents over the age of 18 in care homes and patients in hospital who (temporarily or permanently) lack capacity to make decisions for themselves.
In practice being deprived of liberty under an authorisation means that the person will have to remain in a care home or hospital until a review finds that the circumstances have changed and the conditions no longer need to apply. Authorisations must not remain in place longer than are absolutely necessary.
Adult Social Care plays a vital role in implementing these safeguards. It will act as a supervisory body, alongside NHS Leeds, and receive requests for authorisation under DoLS, carry out assessments, issue authorisations, provide Independent Mental Capacity Advocate (IMCA) services and representatives for people, and review cases.
The nationally agreed Deprivation of Liberty Safeguards Code of Practice provides guidance for professionals involved in administering and delivering the safeguards. The Code is also intended to provide information for people who are, or could become, subject to the deprivation of liberty safeguards, and for their families, friends and carers, as well as for anyone who believes that someone is being deprived of their liberty unlawfully.
Download the booklets on this page to read more about the Mental Capacity Act and Deprivation of Liberty safeguards and find out how they can protect you.