Mental Capacity Act and DoLS

Having mental capacity means being able to understand and retain information and to make a decision based on that information. Someone might not have capacity because they have: A learning disability; Dementia; A mental health problem; A brain injury or a stroke.

The law aims to ensure that people who lack capacity to make decisions by themselves get the support they need to be as involved as possible in decisions about their lives. It also outlines how an assessment of mental capacity should be made, in which situations other people can make decisions for someone who cannot act on their own and how people can plan ahead in case they become unable to make decisions in the future.

There are five principles at the heart of MCA which should be used to underpin all actions and decisions taken in relation to those who lack capacity:

Principle 1: A presumption of capacity. Every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise. Do not assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability.

Principle 2: Individuals being supported to make their own decisions. Make every effort to encourage and support people to make the decision for themselves. If lack of capacity is established, it is still important to involve the person as far as possible in making decisions.

Principle 3: Unwise decisions. People have the right to make what others might regard as an unwise or eccentric decision.

Principle 4: Best interests. If a person has been assessed as lacking capacity then any action taken, or any decision made for, or on behalf of that person, must be made in his or her best interests.

Principle 5: Less restrictive option. Someone making a decision or acting on behalf of a person who lacks capacity must consider whether it is possible to decide or act in a way that would interfere less with the person’s rights and freedoms of action, or whether there is a need to decide or act at all.

When someone lacks mental capacity to consent to care or treatment, it is sometimes necessary to deprive them of their liberty in their best interests, to protect them from harm. The Deprivation of Liberty Safeguards are intended to:

Protect people who lack mental capacity from being detained when this is not in their best interests;

To prevent arbitrary detention;

To give people the right to challenge a decision.

The legislation sets out a procedure for care homes and hospitals to obtain authorisation to deprive someone of their liberty. Without that authorisation the deprivation of liberty will be unlawful. These safeguards are intended to protect people from being deprived of their liberty unless it is in their best interests to protect them from harm and there is no other less restrictive alternative.

If you think someone is being deprived of their liberty without authorisation, contact the DoLS Coordinator in the relevant area:

• Reading 0118 9373747 Dols@reading.gov.uk
• West Berkshire 01635 519056 dols@westberks.gov.uk
• Wokingham 0118 9746850 dols@wokingham.gov.uk

DoLs is due to be replaced with Liberty Protection Safeguards, date is yet to be confirmed, more information can be found here.

In April 2023 in response to our current priority to: Embed a good understanding of the Mental Capacity Act within the practice of our partners.  We ran a Mental Capacity Act survey with the aim being for the board to better understand the current support available and challenges within the partnerships for those supporting vulnerable adults in identifying and managing and supporting people with issues around mental capacity

There were an amazing 199 responses to this survey and the results were considered by the Board in June 2023, this link provides a copy of the presentation.

Key learning from the survey was that there is a lack of confidence in practice in the:

• Assessment of executive function when assessing capacity
• Understanding the criteria for referring to advocacy services
• Assessing capacity when the individual has or may have fluctuating capacity.

The key word when responding to the following question: What would help the wider safeguarding system to improve understanding and practice in relation to mental capacity? Was training, particularly scenario-based training.

In follow up to this survey the Learning and Development Subgroup will consider the partnerships training offer for mental capacity and provide recommendations to the Board.