Mental Capacity Act 2005

A brief legal guide to the Mental Capacity Act, including details of where you can go for further information or support.

Overview and key provisions

Introduction

The Mental Capacity Act 2005 (MCA) creates a framework to provide protection for people who cannot make decisions for themselves. It contains provision for assessing whether people have the mental capacity to make decisions, procedures for making decisions on behalf of people who lack mental capacity and safeguards. The underlying philosophy of the MCA is that any decision made, or action taken, on behalf of someone who lacks the capacity to make the decision or act for themselves must be made in their best interests.

The MCA came into force on 1 October 2007. It is supported by a Code of Practice.

This briefing will look at the definition of capacity and the structures and safeguards provided by the MCA.

The MCA Code of Practice

The Code of Practice to the MCA is an official document that places certain legal duties on health and social care professionals. It also offers more general guidance and information to anyone caring for someone who may lack capacity to make a decision. The MCA should be interpreted using the Code of Practice, which gives explanations and examples of the MCA’s provisions.

To whom does the MCA apply?

The MCA applies in England and Wales. It affects anyone whose mental capacity to make decisions is affected by (what the MCA refers to as) "an impairment of, or a disturbance in the functioning of, the mind or brain." In some cases, a person’s capacity may be permanently affected, perhaps because they have a form of dementia, a learning disability or have suffered a brain injury. But in others, the person’s capacity might be affected only for a temporary period, perhaps because they are confused or unconscious.

It must be remembered that just because a person has a mental health diagnosis or is detained under the Mental Health Act 1983 does not necessarily mean that they lack capacity to make decisions for themselves. The MCA applies to people with mental health problems only when they experience a mental health problem that affects their ability to make a particular decision. For some people, the ability to make certain decisions is permanently affected as a result of their experience of mental illness. However, many people who experience mental health problems are capable of making all of their own decisions. For others, the ability to make some decisions is affected occasionally and only for short periods.

The MCA principles

The MCA is governed by five core principles. These can be summarised as follows:

Presumption of capacity (section 1(2) MCA). Every adult has the right to make their own decisions if they have the capacity to do so. Family carers and healthcare or social care staff must assume that a person has the capacity to make decisions, unless it can be established that the person does not have capacity
Maximising decision making capacity (section 1(3) MCA). People should receive support to help them make their own decisions. Before concluding that someone lacks capacity to make a particular decision, it is important to take all possible steps to try to help them reach a decision themselves.
Right to make unwise decisions (section 1(4) MCA). People have the right to make decisions that others might think are unwise. A person who makes a decision that others think is unwise should not automatically be labelled as lacking the capacity to make a decision.
Best interests (section 1(5) MCA). Any act done for, or any decision made on behalf of, someone who lacks capacity must be in their best interests.
Least restrictive option (section 1(6) MCA). Any act done for, or any decision made on behalf of, someone who lacks capacity should be the least restrictive option possible.

What does "lacking capacity" mean?

Section 2 of the MCA states: "…a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain". The impairment or disturbance can be permanent or temporary.

The phrases ‘in relation to a matter’ and ‘at the material time’ indicate that capacity must be assessed on a decision-by-decision basis. Capacity is not a permanent status and so people should not be described as having or lacking capacity. Instead, when considering someone’s mental capacity a health or social care professional should ask, "Is this person, at this particular time, capable of making this particular decision?"

Some people may have fluctuating capacity because their mental health changes from day to day. For example, a person who hears distressing voices may be unable to make a certain decision when the voices are at their most distressing but be able to make the same decision on a day when they are not hearing the voices.

The level of capacity needed by a person also depends on the decision to be made. For example, a person probably needs a lower level of mental capacity to make decisions about everyday matters, such as what to eat or where to go, than they do when they are deciding whether to buy a new home or get married.

Section 3 of the MCA provides a fuller definition of how to assess whether someone lacks capacity to make a decision. It states that a person is unable to make a decision if he or she is unable to do one or more of the following things:

Understand the information relevant to the decision
Retain the information for long enough to be able to make a decision
Use or weigh up the information as part of the process of making the decision
Communicate the decision by any possible method, such as talking, using sign language, squeezing someone’s hand and so on.

The Code of Practice to the MCA also explains what does not mean that someone lacks capacity. A person must not be assumed to lack capacity because of:

Their age
Their appearance
Any mental health diagnosis they may have
Any other disability or medical condition they may have.

How is a person's capacity assessed?

Anyone intending to take an action or make a decision on behalf of someone else must first assess that person’s capacity to take that action or make that decision for him or herself. The MCA requires that the decision-maker must have a reasonable belief that the person they are helping lacks capacity to make the decision in question.

In assessing someone’s capacity two things must be remembered at all times:

The principles governing the MCA (see section 4 of this briefing). This means that anyone assessing a person’s capacity must start from the presumption that the person has capacity, must help the person to make a decision, must allow the person to make an unwise decision and, if the person lacks capacity, must take a decision on their behalf that is in the person’s best interests and the least restrictive option possible
The definition of lacking capacity in section 2 of the MCA (see above).

Where straightforward day to day actions and decisions need to be taken, it may be the person’s friends and family who make an assessment. Where more difficult decisions have to be made, such as giving consent to medical treatment, a more formal assessment of the person’s capacity may have to be undertaken by a professional, for example a doctor. It must be remembered that the same principles apply to life-changing decisions as they do to routine decisions.

What happens if a person lacks the capacity to make a particular decision?

The MCA creates formal structures to allow people to plan for what should happen if they ever lose their capacity to make particular decision.

If someone has not made such plans and at some point loses their capacity to make a particular decision, the MCA says that someone else can make that decision. This could be anyone – a friend, a relative, an informal carer, a professional carer, a doctor, a social worker, a nurse and so on. Even if someone makes a decision on behalf of a person who lacks capacity, that person should still be involved as much as possible in the decision-making process.

How are best interest decisions made?

Any decision taken on someone else’s behalf must be in that person’s best interests and must restrict the person’s freedom as little as possible. The MCA does not provide a definition of ‘best interests’ but section 4 sets out a checklist of issues that should be considered by anyone taking an action or decision on behalf of someone who lacks capacity.

A person making a decision on behalf of someone else must:

Consider all the relevant circumstances
Consider whether and when the person will have capacity to make the decision in the future and whether to put off making the decision immediately (for example, if the person is experiencing severe mental distress, it may be that this distress will ease in the near future so that the person will be able to make their own decisions)
Support the person’s participation in acts done for him and decisions affecting him
Consider the person’s expressed wishes and feelings, beliefs and values and other factors that the person would be likely to consider
Take into account the views of carers, people with an interest in the person’s welfare, or those appointed to act for the person.

This is not an exhaustive list: there may be other relevant considerations depending on the situation.

A person making a decision on behalf of someone else must not:

Base the best interests decision on unjustified assumptions based on age, appearance, medical condition or behaviour
Make a decision about life-sustaining treatment "motivated by a desire to bring about his death".

The Deprivation of Liberty Safeguards

If someone lacks the capacity to make decisions about their care and it is decided that it is in their best interests for them to be deprived of their liberty, the decision-maker must follow an authorisation process before the person can be lawfully deprived of their liberty. A deprivation of liberty that has not been validly authorised will be unlawful. The authorisation process is governed by the Deprivation of Liberty Safeguards, which were introduced by the Mental Health Act 2007. For more information on the Deprivation of Liberty Safeguards see the Mind Legal Briefing Mental Capacity Act: Deprivation of Liberty Safeguards.

Powers and duties of decision makers

Legal protection
Section 5 of the MCA gives legal protection to people who take actions and decisions in connection with the care and treatment of someone who lacks capacity to deal with their own care and treatment. In order to be protected the decision-maker must follow the steps set out in section 8 of this briefing. This means that they must establish that the person lacks the capacity to make the decision and then make the decision in the person’s best interests. However, section 5 of the MCA does not give someone the power to deprive a person who lacks capacity of their liberty (see R (Sessay) v South London and Maudsley NHS Foundation Trust [2011]).

Restraint
Section 6 of the MCA allows a person who lacks the capacity to make a particular decision to be physically restrained in order to prevent him or her from being harmed. An example is someone who does not have the mental capacity to be aware of road safety. It would be acceptable for a relative or carer to physically stop the person from walking into the road. The restraint must be proportionate to the likelihood of the person suffering harm and also to the seriousness of that harm and must not amount to a deprivation of liberty (as defined in Article 5 of the European Convention on Human Rights). However, it would not be acceptable for the relative or carer to keep the person locked in at all times to prevent them from going near traffic.

Ill-treatment and neglect
Section 44 of the MCA creates an offence of ill-treating or wilfully neglecting a person who lacks capacity. This applies to anyone helping a person who lacks capacity to make his or her own decisions and also to deputies and attorneys. If a person is found guilty of ill-treatment or neglect they may face a prison sentence of up to five years and/or a fine.

If a person is ill-treated or neglected it may also amount to a violation of that person’s human rights. Ill-treatment is likely to violate the right to a private life under Article 8 of the European Convention on Human Rights or, if the ill-treatment is extremely serious, the right not to be subjected to inhuman or degrading treatment under Article 3 of the European Convention on Human Rights.

The Court of Protection

The Court of Protection was created by the MCA to oversee actions taken under the Act and resolve any disputes that involve mental capacity matters. The Court has the same authority as the High Court and appeals can be made against its decisions, with permission, to the Court of Appeal.

When making any decision, the Court of Protection must apply all the principles set out in section 1 of the MCA (see above). In particular, it must make a decision in the best interests of the person who lacks capacity to make the specific decision.

Powers of the Court of Protection

The Court of Protection has the power to:

Decide whether a person has capacity to make a particular decision for themselves
Make declarations, decisions or orders on financial or welfare matters that affect people who lack capacity to make such decisions
Appoint deputies to make decisions for people lacking capacity to make those decisions (see below)
Decide whether a Lasting Power of Attorney or Enduring Power of Attorney is valid
Remove deputies or attorneys who fail to carry out their duties.
Decide on the lawfulness of Deprivation of Liberty Safeguards authorisations and resolve disputes regarding the Deprivation of Liberty Safeguards (see Mind Legal Briefing Deprivation of Liberty Safeguards).

There will usually be a fee for applications to the Court of Protection, although in certain circumstances a person will be eligible for a fee exemption: www.direct.gov.uk/en/Governmentcitizensandrights/Mentalcapacityandthelaw/DG_176444

The enforcement of decisions made by the Court of Protection is supervised by the Office of the Public Guardian (see below).

When should an application to the Court of Protection be made?

An application should be made to the Court of Protection when someone needs to be granted the authority to make decisions in respect of someone’s health, welfare, financial affairs or property. An application to the Court may be necessary for:

Decisions that are particularly difficult where the Court can consider if the proposed action is appropriate, give its view about capacity or assess whether something is in a person’s best interests
Disagreements that cannot be resolved through any other means, such as using an Independent Mental Capacity Advocate (see below)
Situations where ongoing decisions will need to be made for an individual lacking capacity to make those decisions
Issues relating to the Deprivation of Liberty Safeguards. For more on this see the Mind Legal Briefing Deprivation of Liberty Safeguards.

Who can make an application to the Court of Protection?

The MCA is quite flexible about who can apply to the Court of Protection. People who might apply to the Court of Protection include family members, healthcare trusts or local authorities.

The person who lacks capacity to make the decision in question should be a party to the proceedings alongside the person who is making the application on their behalf. If they lack the capacity to instruct a solicitor, a litigation friend should be appointed. A litigation friend is someone who will provide legal instructions to the person’s legal representative on their behalf. A litigation friend might be a relative, friend or attorney. If there is no one available to act as a litigation friend, the Official Solicitor will be appointed.

The following people can apply to the Court of Protection without permission:

A person who lacks, or is alleged to lack, capacity, or their legal guardian if they are under 18 years old
An attorney appointed under a lasting power of attorney or the person who made the lasting power of attorney
A court-appointed deputy acting on behalf of the person concerned (see below)
A person named in an existing court order, if the matter relates to that court order.

For anyone else making an application, they are likely to need permission from the Court. When considering whether to grant permission the Court must take the following considerations into account:

The applicant’s connection to the person who lacks capacity
The reasons the application is being made
The potential benefits to the person who lacks capacity
Whether the benefits to the person who lacks capacity can be achieved in another way.

Public funding

Public funding may be available for Court of Protection proceedings if the eligibility criteria are met. Solicitors specialising in Court of Protection cases will be able to advise on whether public funding will be available in a particular case.

Deputies

The Court of Protection can appoint deputies as substitute decision-makers where a person loses capacity in relation to a particular decision and has not completed a Lasting Power of Attorney. Deputies can make decisions on health, welfare and financial matters. A deputy may be appointed when an ongoing series of decisions needs to be made. In most cases the deputy will be a family member or someone who knows the person well although a spouse does not have the legal right to act a deputy. In cases where a person’s affairs or needs are very complex the Court of Protection might appoint a deputy who is independent of the family.

A person applying to the Court of Protection to be a deputy will need to show why a deputy is necessary and that they have the skills and ability to carry out a deputy’s duties and that they are trustworthy and reliable. The Court of Protection has the power to remove the deputy or to change their powers. Deputies are supervised by the Office of the Public Guardian (see below).

Deputies only have the right to make decisions that the person does not have the capacity to make. Any decision that the deputy does make must be in the person’s best interests, deputies should refer to part 138 of the MCA Code of Practice for more information.

A deputy can claim reasonable expenses and, if the Court directs, can be paid for their services. The person the deputy is acting for will pay the expenses and costs.

Restrictions on deputies’ powers

A deputy has no authority to make decisions or take action in the following circumstances:

If they think that the individual has the capacity to make the decision in question
If something they do is intended to restrain the individual
If their decision goes against that of an attorney acting under a Lasting Power of Attorney
A deputy cannot refuse the provision or continuation of life sustaining treatment.

The Office of the Public Guardian

The Office of the Public Guardian (OPG) supervises the enforcement of decisions made by the Court of Protection, registers lasting powers of attorney and supervises Court appointed deputies. It helps attorneys and deputies carry out their duties and publishes information and guidance about the MCA for families, carers, healthcare professionals and lawyers. This includes forms for making a lasting power of attorney and applying to the Court of Protection. The OPG has responsibility for investigating concerns about the actions of registered attorneys and deputies (or where the Court has authorised an action under a single order), and has an investigations unit with a dedicated phone number.

Anyone seeking advice or information about the MCA can telephone the Office of the Public Guardian directly on 0845 330 2900 or visit www.justice.gov.uk/about/opg.

Independent Mental Capacity Advocates

The MCA provides for an Independent Mental Capacity Advocate (IMCA) service in England and Wales. This service provides independent advocates to support and represent people who do not have the capacity to make a decision. See Mind Guide to Advocacy for a more simple explanation of IMCAs.

Who are IMCAs?

IMCAs are people who are approved by the local authority to act on behalf of people who lack capacity. IMCAs must be independent people of integrity and good character with appropriate experience and training. NHS bodies or local authorities must take account of an IMCA’s views when making decisions that affect people who lack capacity.

When must an IMCA be appointed?

An IMCA must be appointed for a person lacking capacity who has no close family member or unpaid carer to support them, if:

An NHS body is proposing to provide, withhold or withdraw serious medical treatment (unless the treatment is urgent, in which case the NHS body does not have to appoint an IMCA)
A local authority or NHS body is deciding on the person’s long-term living arrangements in a hospital or care home. An IMCA must be appointed where the decision concerns moving the person to hospital for more than 28 days or into a care home for more than eight weeks (unless the arrangements are urgent, in which case the NHS body does not have to appoint an IMCA).

An IMCA must also be appointed in some cases where the Deprivation of Liberty Safeguards are used under Schedule A1 (standard and urgent authorisations) and the person concerned has no close family member or unpaid carer to be consulted. For more detail on this see the Mind Legal Briefing Deprivation of Liberty Safeguards.

An IMCA will not be appointed where:

A person has nominated someone to be consulted about matters that affect them or has a close family member or an unpaid carer who can support them in the decision making process
Where a person has made a lasting power of attorney or enduring power of attorney to deal with such decisions
Where the Court of Protection has appointed a deputy to deal with such decisions (see above).

When may an IMCA be appointed?

An IMCA may be appointed for a person lacking capacity who has no close family member or unpaid carer to support them, if:

An NHS body or local authority is reviewing or planning to review the person’s accommodation
If it would be of particular benefit to a person without capacity when there is an allegation that they have been abused.

An IMCA will not be appointed where:

A person has nominated someone to be consulted about matters that affect them or has a close family member or an unpaid carer who can support them in the decision making process
Where a person has made a lasting power of attorney or enduring power of attorney to deal with such decisions
Where the Court of Protection has appointed a deputy to deal with such decisions (see above).

What does an IMCA do?

An IMCA has the right to visit and privately consult with the person who lacks capacity.

When an IMCA is appointed to represent someone who does not have capacity they should:

Interview the person who lacks capacity
Examine the person’s records (for a list of the records that IMCAs have access to see section 35(6) MCA 2005)
Gather relevant information about the decision that needs to be made
Where appropriate, consult with the professionals providing care and treatment to the person
Where appropriate, consult with others who may be able to comment on the person’s wishes, feelings, beliefs and values.

Once the IMCA has all of this information, he or she should:

Ascertain the support that the person lacking capacity needs to participate in the decision
Identify what the person’s wishes, feelings, beliefs and values would be likely to be if he or she had capacity to make the decision
Identify what other courses of action are available
If the decision relates to medical treatment, give an opinion as to whether the person would benefit from a further medical opinion
Take into account the MCA Code of Practice, ensuring that the guiding principles are followed, that the least restrictive options have been considered and that the best interests checklist has been complied with.

An IMCA must then prepare a report including his or her conclusions on all of these matters, giving an opinion on how the relevant decision should be made in the person’s best interests.

If there continues to be disagreement amongst professionals as to what is in the person’s best interests or if an IMCA believes that his or her opinion has not been taken account of, the IMCA may make a complaint to the NHS body or local authority or refer the issue to the Court of Protection (see above).

What is the difference between an IMHA and an IMCA?

An Independent Mental Health Advocate (IMHA) may be appointed to represent people who have a mental disorder under the Mental Health Act 1983 (MHA 1983) and fall under certain sections of the MHA 1983. In Wales, all patients under the MHA 1983, including informal patients, have a right to an IMHA.

An IMCA may be appointed for people who lack capacity under the MCA 2005 (see above).

Relationship between the Mental Health Act 1983 and the Mental Capacity Act 2005

The Mental Health Act 1983 (MHA 1983) is a separate legal regime from the MCA 2005. The MHA 1983 applies to people who have a mental disorder, such as schizophrenia. The MCA 2005 applies to people who do not have capacity. If a person is detained under the MHA 1983 for treatment or assessment, decisions must be made in accordance with the MHA 1986 and not in accordance with the best interests provisions under the MCA 2005. Similarly a person who lacks capacity cannot be detained under the MHA 1983 unless they meet the MHA 1983 criteria. The only way that a person who lacks capacity can be detained is by following the procedure under the Deprivation of Liberty Safeguards (see the Mind Legal Briefing Deprivation of Liberty Safeguards).

Further information

This legal briefing attempts to provide an overview of the key concepts and provisions in the MCA 2005. It is not a substitute for advice in any particular case.

For further information about the work of Mind’s Legal Unit and information on our Casework Criteria, please refer to our information sheet The Legal Unit .

For general advice about mental capacity please contact the Mind Legal Advice Service on 0300 466 6463 or legal@mind.org.uk.

For more detailed advice on any of the issues discussed in this briefing, please consult a solicitor specialising in mental capacity law and the Court of Protection.

More specialist advice can be obtained from the following organisations:

1. The Law Society
www.lawsociety.org.uk
0870 606 2555

2. Community Legal Advice
www.communitylegaladvice.org.uk
0845 345 4345

3. The Office of the Public Guardian
www.justice.gov.uk/about/opg
0845 330 2900

4. The Mental Health Lawyers Association
Find a lawyer service: www.mhla.co.uk/find-a-lawyer/

5. The Ministry of Justice
Guide for families, friends and carers of people who may lack capacity: www.justice.gov.uk/downloads/protecting-the-vulnerable/mca/opg-602-0409.pdf
Booklets on various aspects of the MCA, including IMCAs: www.justice.gov.uk/protecting-the-vulnerable/mental-capacity-act

Mind Legal Unit
August 2012

Introduction

The MCA creates a framework within which to provide both empowerment and proper protection for people who cannot take all decisions for themselves. It contains provision for deciding whether people have the mental capacity to make decisions for themselves and for making decisions on behalf of people who lack the mental capacity to make such decisions. These decisions can be financial decisions or health and welfare decisions. This briefing is concerned with financial decisions.

Meaning of capacity

The meaning of capacity is discussed fully in Mental Capacity Act 2005 Briefing 1: Overview and Key Provisions of the Mental Capacity Act 2005. The MCA explains what is meant by incapacity. It provides that "a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain."

The MCA also provides that "a person is unable to make a decision if he is unable: (a) to understand the information relevant to the decision (b) to retain that information (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means)."

There is a presumption that a person has capacity unless it is proved otherwise. In addition, a person is not to be treated as unable to make a decision unless all practicable steps have been taken to help him nor should a person be treated as unable to make a decision merely because he or she makes an unwise decision.

Best interests

The MCA states that anything done or decision made on behalf of an incapacitated person must be done or made in that person’s best interests. In deciding what is in the person’s best interests, the decision must not be made merely on the basis of the person’s age or appearance nor should account be taken of any condition or behaviour which might cause other people to make unjustified assumptions. In addition, the following matters should be taken into account:

Whether it is likely that the person in question will at some time have capacity and, if so, when;

The person’s past and present wishes and feelings (particularly any written statements);

The beliefs and values likely to influence the person if he had capacity and any other relevant factors;

The views of anyone named by the person as someone who should be consulted in relation to the issue in question; and

Anyone caring for the person, the donee of a power of attorney granted by the person or any deputy appointed for the person by the court (see below).

Therefore any decisions made in respect the financial affairs of an incapacitated person must be made in his or her best interests. If there is any dispute about this, an application can be made to the Court of Protection for a ruling. Mental Capacity Act 2005 Briefing 3: Structures and Safeguards under the Mental Capacity Act 2005 explains in more detail the functions and procedures of the Court of Protection.

What are financial affairs?

Anything that relates to an incapacitated person’s finances, including bank accounts, overdrafts, credit cards, savings and property can be dealt with under the MCA. Special rules apply to the following:

Contracts

English common law allows wide scope to make a contract and generally will not interfere in the bargain reached by the parties if, on an objective basis, it appears that agreement has been reached. Therefore, a contract made by someone without mental capacity will still be binding if the other party reasonably believed the person to be of full capacity at the time of its making. The test of capacity is whether the person was capable of understanding the general nature and effect of what he or she was doing. Therefore, it will be dependent on the type of contract and its complexity; for example, buying a bus ticket is very different from selling a house.

A contract will be invalid if it is shown that the other party should have known that the person did not have capacity, unless the contract was for the purchase of "necessaries". These are defined as goods suitable to the condition in life of the person concerned and to their actual requirements at the time of the sale or delivery. In these cases the contracts will be binding, even if the buyer lacks capacity, but the buyer will only be required to pay a reasonable price.

It is very difficult to show that the person contracting did not believe the other had capacity.

Wills

A person making a will must have capacity at the time they decide what to do with their estate and at the time they sign their will. If a person does not have capacity to make a will, and would otherwise die intestate, a statutory will can be made under the auspices of the Court of Protection.

Social security

A person receiving state benefits can nominate another person to cash benefits for him or her. The agent only has this limited role and has no authority to spend the money on behalf of the person in question.

A person can also be appointed by the Department for Work & Pensions as an appointee for the purposes of making and receiving a claim for benefits on behalf of a claimant. This procedure is not available when the Court of Protection has appointed a receiver. The appointee can spend the money claimed for the benefit of claimant.

Lasting Powers of Attorney

Before the Act came into force, these used to be called Enduring Powers of Attorney (EPAs).

A person, when possessing the legal capacity so to do, can appoint an attorney or attorneys to act for him or her in relation to his or her financial or property affairs. This is known as an ordinary power of attorney and ceases to have effect if the person appointing the attorney loses capacity.

The Enduring Powers of Attorney Act allowed people to appoint attorneys whose appointment continued even after the person lost capacity. The Act has now replaced EPAs with Lasting Powers of Attorney (LPAs). The main difference between an EPA and an LPA is that now an attorney can be allowed to make health and welfare decisions as well as financial decisions.

An LPA is a power of attorney under which a person (the donor) gives to another person (the donee) authority to make decisions on property and financial affairs and personal welfare matters and which provides for such decisions to be made in circumstances where the donor no longer has capacity. Both the donor and the donee must be over the age of 18.

An LPA must comply with certain formalities. It must be in writing, executed as a deed and witnessed by a third party. It needs to include information about the purpose of the instrument. The donor must name the person or persons to be appointed as attorney(s), state that he or she has read the information and intends to confer authority on the attorney to make decisions when he or she has lost capacity and state whether anyone, and if so whom, should be notified of any application to have the LPA registered. The donee must state that he or she has read the information and understands the duties under it. The instrument must also contain a certificate from a prescribed person that in his or her opinion the donor understands the purpose of the document and no fraud or undue pressure is being exerted.

The LPA must be registered with the Public Guardian in order to become valid. Therefore an attorney will not have authority to act on behalf of a person who loses capacity if at that time the LPA has not been registered. An LPA does not take effect unless and until it has been registered with the Public Guardian. An application to register an LPA can be made by the donor or the donee. It is done by sending the original document with a completed application form and the applicable fee together with appropriate medical evidence confirming that the donor has lost capacity. If and when the donor regains capacity, an application can be made for the LPA to be revoked.

The Court of Protection

The Court of Protection supervises the framework set out in the MCA. In particular it has the power to:

Make declarations as to whether a person has capacity to make a particular decision or to make decisions about a particular thing;

Make decisions and appoint deputies to make decisions on a person’s welfare, including deciding where a person is to live and giving or refusing consent to health treatment;

Make decisions and appoint deputies to make decisions on a person’s property and affairs;

Rule on the validity of LPAs; and

Determine the meaning or effect of an LPA.

The Public Guardian

The Public Guardian’s Office duties include:

Registering LPAs and deputies;

Supervising deputies appointed by the Court of Protection;

Providing evidence to the Court of Protection; and

Providing information and guidance to the public.

The Public Guardian also works with a range of agencies, such as the police and social services, in order to be able to respond to any concerns which may be raised.

Independent Mental Capacity Advocates

The Act provides for an independent mental capacity advocate (IMCA) service. The main functions of an IMCA are to:

Provide support to the person whom he or she has been instructed to support so that the person may participate as fully as possible in any relevant decision;

Obtain and evaluate relevant information;

Ascertain what the person’s wishes or feelings would be likely to be, and the beliefs and values that would be likely to influence that person, if he or she had capacity;

Ascertain what alternative courses of action are available in relation to the person; and

Obtain a further medical opinion where treatment is proposed and the advocate thinks that one should be obtained.

Although the MCA would permit a broader group of people to receive IMCA services on a discretionary basis, funding for the scheme has been calculated on a very limited basis. The Government intends the service to apply in the first instance only to "those who have no family or friends".

Further information

This legal briefing relates only to the law of England and Wales in force at the time of writing. It is a brief outline of the law and is not a substitute for detailed advice.

For further information about the work of Mind's legal unit, please refer to our information sheet, Introduction to the Legal Unit. This is also available in hard copy (T: 020 8519 2122).

The Office of the Public Guardian (OPG) is the first point of contact for anyone seeking advice or information about the MCA (T: 0845 330 2900). Its website (www.publicguardian.gov.uk) contains a range of information about the Mental Capacity Act, Lasting Powers of Attorney and how to make an application to the Court of Protection.

For more detailed advice on any of the issues discussed in this briefing you should take advice from a solicitor specialising in this area of the law. Details of where to seek specialist advice can be obtained from the Law Society (www.lawsociety.org.uk, T: 0870 606 2555) or from Community Legal Advice, T: 0845 345 4345. Alternatively, you could contact your local Law Centre or Citizen’s Advice Bureau, who may be able to help.

Michael Konstam
Legal Unit
Mind
Granta House
15-19 Broadway
London E15 4BQ

January 2008

Healthcare and Welfare Decisions

Introduction
Meaning of capacity
Best interests
What are healthcare decisions?
What are welfare and personal care decisions?
Advance decisions (which may also be referred to as advance directives)
Lasting Powers of Attorney
Deputies appointed by the Court of Protection
The Court of Protection
The Public Guardian
Independent Mental Capacity Advocates
Further information

Introduction

Meaning of Capacity

The meaning of capacity is discussed fully in Mental Capacity Act 2005 Briefing 1: Overview and Key Provisions of the Mental Capacity Act 2005. The Act explains what is meant by incapacity. It provides that "a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain."

Best Interests

The MCA states that anything done or a decision made on behalf of an incapacitated person must be done or made in that person's best interests. In deciding what is in the person's best interests, the decision must not be made merely on the basis of the person's age or appearance nor should account be taken of any condition or behaviour which might cause other people to make unjustified assumptions. In addition, the following matters should be taken into account:

Whether it is likely that the person in question will at some time have capacity and, if so, when;
The person's past and present wishes and feelings (particularly any written statements);
The beliefs and values likely to influence the person if he had capacity and any other relevant factors;
The views of anyone named by the person as someone who should be consulted in relation to the issue in question; and
Anyone caring for the person, the donee of a power of attorney granted by the person or any deputy appointed for the person by the court (see below).

Therefore any decisions made in respect of the healthcare, welfare or personal care of an incapacitated person must be made in his or her best interests.

If there is any dispute about whether something is being decided in a person’s best interests, an application can be made to the Court of Protection for a ruling. Mental Capacity Act 2005 Briefing 3: Structures and Safeguards under the Mental Capacity Act 2005 explains in more detail the functions and procedures of the Court of Protection.

What are healthcare decisions?

Decisions on healthcare and treatment may include decisions on the following matters: diagnostic examinations and tests, medical and dental treatment including surgical procedures and medication, cardiac resuscitation, artificial respiration, nutrition and hydration, blood transfusions, and other healthcare procedures such as the taking of blood samples or other bodily substances, chiropody, physiotherapy, and nursing care. Many other actions can be taken by carers or professionals on behalf of a person without capacity, without seeking any formal authority, or the involvement of the Court of Protection, as long as they are in the person's best interests, including giving medication, taking someone to hospital for treatment or assessment, providing nursing care, and administering emergency first aid or medical treatment.

However, if a valid advance decision or advance directive is in existence, the carer or professional may not take any of the above steps if he or she is aware that this would be contrary to the wishes expressed in the advance directive or decision. Also, a carer or professional should not take a decision that he or she is aware contradicts the decision of an Attorney appointed by the person concerned in a Lasting Powers of Attorney document, or that contradicts the decision of a Deputy appointed by the Court.

What are welfare and personal care decisions?

Decisions on welfare and personal care may include decisions on the following matters: where someone is to live, such as whether at home, with a relative, or in a residential care home or nursing home; acts of physical assistance such as washing, dressing, attending to personal hygiene, feeding, physically putting someone in a car, when taking them, for example, to see a doctor, dentist, etc.; assistance such as shopping, buying essential goods, arranging services required for personal care; tidying or clearing a person's home if they have gone to hospital or moved into a residential care home, washing clothes, taking a car to be repaired; help with communication; taking steps in relation to community care services, such as day care, residential accommodation, and nursing care.

"Day to day" and other actions necessary for a person's welfare can be taken on behalf of a person without capacity by carers, family members, and health and care professionals without the need for any formal authority or intervention by the Court of Protection, as long as the steps are in the person's best interests.

Some decisions, however, cannot be made without the involvement of an Independent Mental Capacity Act Advocate (see below on Independent Mental Capacity Act Advocates). Nor can any decisions be taken contrary to the decision of an Attorney appointed by the person concerned in a Lasting Powers of Attorney document, or contrary to the decision of a Deputy appointed by the Court.

There are also some decisions which can never be taken on behalf of a person without capacity, listed in section 27 of the Mental Capacity Act 2005. They include: decisions concerning the withholding of artificial nutrition and hydration from a person in a Persistent Vegetative State and non-therapeutic sterilisation of a person without capacity. For further information, contact a legal advisor or Mind's Legal advice line.

Advance decisions (which may also be referred to as advance directives)

An advance directive is sometimes called a "living will", and has also been called an "advance statement" or "advance refusal". The Mental Capacity Act calls an advance directive an "advance decision". An advance decision or directive is a statement of someone's wishes regarding the healthcare and medical treatment they would wish to have or not wish to have, if they were to become mentally incapable of making decisions on these matters in the future. The individual must have full capacity when making the statement, but it will remain valid after he or she loses capacity to consent to, or refuse, treatment in the future. In order for the advance decision/directive to be legally binding, the individual must have reached the age of 18 at the time of making it.

The term "advance statement" is no longer used to refer to a legally binding expression of a person’s wishes, and therefore does not mean the same as an advance directive/decision. It refers to a non-legally binding document identifying a person’s views and preferences on a range of medical and other issues. Under the Mental Capacity Act an advance statement would need to be taken into account when decisions are made after a person loses the capacity to make them for him/herself, and the decision maker needs to decide what the person’s best interests might be. The issues covered by an advance statement could include: domestic arrangements, treatment preferences, finances, childcare, dietary requirements. As in the case of most advance decisions, no formalities are required in order to make an advance statement. However, it should be remembered that they are not legally binding upon future decision makers, and so it may be preferable for a person to draw up an advance decision/directive as set out in the Act to ensure that their wishes will be followed.

Doctors and healthcare workers must take the wishes expressed in the advance decision into account, as they are legally binding under the MCA, and doctors who carry out treatment contrary to the wishes expressed in an advance decision will in most cases be acting unlawfully. However, advance decisions are usually used to express advance refusals of treatment, because they cannot be used positively to compel a doctor or healthcare professional to administer a particular type of treatment. Statements about what type of treatment an individual would like to have MAY be taken into account, but they are not legally binding. This is usually a matter for a doctor's clinical judgement.

An advance decision may also not be effective to prevent medical treatment being given where, under the law, treatment can be given under the principle of necessity to save life. If the advance decision is to be used to refuse life-saving treatment, then it must contain clear and specific instructions to this effect and comply with the conditions set out below. An advance decision cannot be used to give effect to an unlawful act, such as euthanasia, an act which is a deliberate intervention with the express aim of ending life.

Otherwise, the instructions contained in the advance decision cannot be ignored by the doctors and other professionals treating the individual, unless:

The advance decision does not apply to the particular situation which arises; or
The advance decision is not clear; or
The individual has, since making the advance directive/decision, acted in a way which is clearly inconsistent with it; or
The individual has, since making it, conferred authority on another person through a Lasting Power of Attorney (see below) to make decisions relating to the treatment referred to in the advance decision; or
The Mental Health Act applies and it allows professionals to override a person's instructions by treating them without their consent. Where a patient has been detained, an advance decision cannot be used to override the compulsory treatment provisions of the Mental Health Act. Treatment can still be given for the purpose of treating "mental disorder". However, a refusal of medical treatment may still be valid if the patient is voluntary (or informal) in status, and it will be valid in respect of treatment for physical health problems.

An advance decision need not be in writing in order to be legally valid, nor are any formal procedures laid down by the MCA. However, in order to ensure that it is carried out exactly as the maker would wish, it is usually recommended that it should be in writing. It should express clearly what types of treatment are being refused. Anyone wishing to draft an advance directive/decision should seek advice to ensure that it covers the precise situations and circumstances which they would like it to cover. For example, instructions should be included to take account of advances in medical treatment, such as the development of new drugs. Also, such documents need to be reviewed regularly in case of a change in personal circumstances. A lawyer specialising in mental capacity matters would be able to provide such advice.

It is important to note that, under the MCA, an advance decision which includes a refusal of life-sustaining treatment must be in writing with a statement verifying that it is to apply to such treatment. It must also be signed by the patient in the presence of a witness in order to be enforceable.

An advance decision should ideally, if in writing, include the maker's name, address and other relevant personal details, and be signed by a witness. The Mental Capacity Act Code of Practice states that the role of the witness is to witness the signature, it is not to certify that the person has the capacity to make the advance decision. However, it has been suggested by a legal expert that the document should be signed by a witness who can verify that the maker was mentally competent at the time the document was drafted, and that there should be a statement in the document to the effect that the maker understands the effect of the advance decision and has the mental capacity required by law to make it. These additional measures would help protect the advance decision from subsequent legal challenge.

A person who is detained under the Mental Health Act does not necessarily lack the capacity to make an advance decision, but it may be useful to have a psychiatrist's opinion that, in spite of the presence of a mental health condition which warrants detention and treatment in hospital, he or she does have the necessary capacity at the time of making it.

It is important for a person with an advance decision/directive to draw attention to its existence, by supplying a copy to their GP and/or any hospital medical personnel involved in their care and treatment, for inclusion in their medical records, and to their Nearest Relative, carers or family members.

An advance decision/directive can be altered orally unless it relates to a refusal of life-sustaining treatment. Any advance decision/directive can be withdrawn, wholly or in part, at any time, and the law allows this to be done orally, although it is advisable to do so in writing, so that others may be clear that this has happened. However, it should be stressed that a withdrawal which has been done orally will be binding, and oral withdrawals may have to occur in circumstances where writing is not practicable, such as just before undergoing an anaesthetic. Disputes about the existence, validity or applicability of an advance decision/directive can be referred to the Court of Protection.

The effect of an advance decision/directive is overridden if the maker subsequently grants a Lasting Power of Attorney which covers the same subject matter as the advance decision, or, significantly, if the creator of the document has the capacity to express his own wishes at the time the decision has to be made. However, it cannot be overridden by a decision of the Court of Protection, a court-appointed deputy, or an attorney appointed before the date of the advance decision.

Lasting Powers of Attorney

Before the Act came into force, these used to be called Enduring Powers of Attorney (EPAs).

A person, when possessing the legal capacity to do so, can appoint an attorney or attorneys to act for him or her in relation to his or her financial or property affairs. This is known as an ordinary power of attorney and ceases to have effect if the person appointing the attorney loses capacity.

The Enduring Powers of Attorney Act allowed people to appoint attorneys whose appointment continued even after the person lost capacity. The MCA has now replaced EPAs with Lasting Powers of Attorney (LPAs). The main difference between an EPA and an LPA is that now an attorney can be allowed to make healthcare, welfare and personal care decisions as well as financial decisions. It is possible, however, to create separate powers for financial and welfare or healthcare matters. This means that a person could have one attorney for their financial decisions and another for their personal care/ welfare decisions and healthcare decisions.

It is not possible for couples, or groups, such as friends, partners or a husband and wife, to create a joint Lasting Power of Attorney. Only individuals can create such a power.

An LPA is a power of attorney under which a person (the donor) gives to another person (the donee) authority to make decisions on property and financial affairs, and healthcare and person welfare matters, and which provides for such decisions to be made in circumstances where the donee no longer has capacity. Both the donor and donee must be over the age of 18. The attorney or donee has to have capacity to act as attorney at the time of appointment, but does not have to live in England and Wales.

An LPA must comply with certain formalities. It must be in writing, executed as a deed and witnessed by a third party. It needs to include information about the purpose of the instrument. The donor must name the person or persons to be appointed as attorney(s), state that he or she has read the information and intends to confer authority on the attorney to make decisions when he or she has lost capacity, and state whether anyone, and if so whom, should be notified of any application to have the LPA registered. The donee, the person to whom authority is given, must state that he or she has read the information and understands the duties under it. The instrument must also contain a certificate from a prescribed person that in his or her opinion the donor understands the purpose of the document and no fraud or undue pressure is being exerted.

An LPA may stipulate which decisions an attorney has the power to make, or alternatively, may specify which decisions he or she is not authorised to make, on behalf of the donor. The attorney is not authorised to refuse life-sustaining treatment on behalf of the donor, unless this is specifically expressed in the LPA. Also, the attorney has no power under the Mental Capacity Act 2005 to demand a specific form of treatment on behalf of the donor. An attorney can never refuse basic care on behalf of the donor, such as the provision of food and drink by natural means, or the keeping of the donor in hygienic conditions, as it is considered that this would never be in his or her best interests.

The LPA must be registered with the Public Guardian in order to become valid. Therefore an attorney will not have authority to act on behalf of a person who loses capacity if at that time the LPA has not been registered. An LPA does not take effect unless and until it has been registered with the Public Guardian. An application to register an LPA can be made by the donor or the donee. This can be done by sending the original document with a completed application form and the applicable fee together with appropriate medical evidence confirming that the donor has lost capacity, if s/he has done so. If and when the donor regains capacity, an application can be made for the LPA to be revoked.

Decisions made by the attorney (donee) must be in the donor's best interests, and complaints about the way in which an attorney is exercising his or her powers can be made to the Public Guardian. The Court of Protection can be asked to interpret the scope and meaning of Lasting Power of Attorney instruments in cases of doubt or ambiguity.

Generally, an LPA is subject to the wishes expressed by the donor in an advance decision/directive. However, if the LPA is made on a date after the advance directive is made, the attorney must follow the LPA if it confers the power to refuse treatments specified in the advance directive.

Deputies appointed by the Court of Protection

A deputy is a person aged 18 years or over appointed by the Court of Protection to make decisions on behalf of an incapacitated person. There will normally be no need for a deputy if the individual has already appointed an attorney through a Lasting Power of Attorney. A healthcare attorney will not normally be appointed if the individual has made out a valid advance decision/directive.

A deputy may be appointed if a series of decisions are required to be made on behalf of an incapacitated individual, and there is no attorney. In cases where a one-off decision is required, the Court of Protection will normally make a single order without appointing a Deputy. It has been said that the appointment of a deputy for personal care decisions will be made rarely. Deputies will also only rarely be given healthcare powers. A deputy could be needed, for example, where a dispute existed between different family members, and the individual has had health problems calling for repeated assessments and decisions by doctors and carers.

It has been said that the Court is unlikely to appoint someone who is completely unknown to the individual in question, as the appointment of someone with no insight into the individual's wishes, feelings, values or healthcare/personal needs would not be in that person's best interests. The appointment of a deputy would only occur if it were in his or her best interests.

The following are examples of circumstances where appointment of a deputy could be judged to be necessary:

There is a history of acrimonious and serious family disputes which could have a detrimental effect on decisions about the person's future care; or
The person's interests are best met by a deputy consulting with everyone concerned and having the final authority to make the necessary decisions; or
In exceptional cases, where the person is felt to be at risk of serious harm if left in the care of family members, a local authority officer or independent person could be appointed to make personal care decisions; or
Where a series of linked welfare decisions needs to be made over time, and single orders of the Court would not be appropriate.

A deputy cannot make a decision inconsistent with a decision made by an attorney appointed under a Lasting Power of Attorney, nor may he or she refuse consent to a life-sustaining procedure on behalf of an incapacitated individual. The deputy must act within the scope of the powers conferred on him or her by the Court. Concerns about the actions of a deputy should be reported to the Public Guardian, who may appoint a Visitor to visit him or her and investigate the complaint. The matter could ultimately be referred to the Court of Protection, which has the power to discharge the deputy or vary his or her powers.

The following are examples of decisions a deputy might take on behalf of a person:

Deciding where he or she is to live;

Deciding what contact he or she is to have with specified persons, but not prohibiting contact with a named person;

Giving or refusing consent for the carrying out or continuation of treatment by a person providing healthcare for him or her, but this does not include life-sustaining treatment.

The deputy does not have the power to transfer responsibility for healthcare to a different doctor, or to require treatment to be provided by a doctor which is not considered to be in the person's best interests.

Deputies can also be appointed to make financial and property decisions, in the same circumstances that govern the appointment of Receivers under Part VII of the Mental Health Act 1983. With regard to property and affairs, trust companies as well as individuals can be appointed as deputies.

The Court of Protection

The Court of Protection supervises the framework set out in the MCA. In particular it has the power to:

Make declarations as to whether a person has capacity to make a particular decision or to make decisions about a particular thing;
Make decisions and appoint deputies to make decisions on a person's welfare, including deciding where a person is to live and giving or refusing consent to healthcare and medical treatment;
Make decisions and appoint deputies to make decisions on a person's property and affairs;
Rule on the validity of LPAs; and
Determine the meaning or effect of an LPA.

The Public Guardian

The Public Guardian Office’s duties include:

Registering LPAs and deputies;
Supervising deputies appointed by the Court of Protection;
Providing evidence to the Court of Protection; and
Providing information and guidance to the public.

The Public Guardian also works with a range of agencies, such as the police and social services, in order to be able to respond to any concerns which may be raised.

Independent Mental Capacity Advocates

The Act provides for an independent mental capacity advocate (IMCA) service. The main functions of an IMCA are to:

Provide support to the person whom he or she has been instructed to support so that the person may participate as fully as possible in any relevant decision;
Obtain and evaluate relevant information;
Ascertain what the person's wishes or feelings would be likely to be, and the beliefs and values that would be likely to influence that person, if he or she had capacity;
Ascertain what alternative courses of action are available in relation to that person; and
Obtain a further medical opinion where treatment is proposed and the advocate thinks that one should be obtained.

The service is restricted to those who do not have representation in the form of (a) a person nominated by the individual (by whatever means) as a person to be consulted in matters affecting his or her interests, (b) a donee of an LPA or EPA created by the individual, or (c) a deputy appointed by the Court of Protection. The services of an IMCA must be secured if serious medical treatment is proposed for a person who lacks the capacity to consent to it, and no other person, such as (a), (b) or (c) above, is available, apart from paid carers or professionals, whom it would be appropriate to consult in determining what would be in such a person's best interests.

Further information

This legal briefing relates only to the law of England and Wales in force at the time of writing. It is a brief outline of the law and is not a substitute for detailed advice. In Scotland the Adults with Incapacity (Scotland) Act 2000 applies, which is not covered in this briefing.

For further information on the Legal Unit, please see our Legal Unit page on this website.

The Office of the Public Guardian (OPG) is the first point of contact for anyone seeking advice or information about the MCA (telephone 0845 330 2900). Its website (www.publicguardian.gov.uk) contains a range of information about the Mental Capacity Act, Lasting Powers of Attorney and how to make an application to the Court of Protection.

For more detailed advice on any of the issues discussed in this briefing, you should take advice from a solicitor specialising in this area of the law. Details of where to seek specialist advice can be obtained from the Law Society (www.lawsociety.org.uk, telephone 0870 606 2555) or from Community Legal Advice, telephone 0845 345 4345.

Alternatively, you could contact your local Law Centre or Citizen's Advice Bureau, who may be able to help.

Joanna Sulek

Legal Unit
Mind
Granta House
15-19 Broadway
London E15 4BQ

January 2009

Deprivation of liberty safeguards

Overview
When should the deprivation of liberty provisions be relied upon?
Requesting an authorisation
Six assessments
Relevant person's representative
Actions following decision
Reviewing and challenging
Appeal to Court of Protection
Black and minority ethnic issues
Further information

Overview

Part II of the Mental Health Act 2007 (MHA 2007) made amendments to the Mental Capacity Act 2005 (MCA) by the introduction of deprivation of liberty safeguards (previously referred to as "Bournewood" safeguards). These came into force on 1 April 2009.

The aim of the amendments to the MCA is to remedy the "gap" identified by the case of HL v UK (App No 45508/99, 5 October 2004), otherwise known as Bournewood after the hospital at the centre of the case. In HL v UK, the European Court of Human Rights (ECtHR) ruled that a man diagnosed with autism was deprived of his liberty and that this had been in breach of Article 5 of the European Convention on Human Rights (ECHR). Deprivation of liberty was not defined. The Court merely confirmed that it was different from restriction of liberty and said that the difference was one of degree or intensity. As originally drafted, the MCA allowed restrictions to be placed upon the liberty of people lacking capacity. The amendments set out a new procedure in England and Wales for depriving people lacking capacity of their liberty in certain circumstances.

New sections 4A and 4B are inserted into the MCA by the MHA 2007. Section 4A allows for a person to be deprived of his or her liberty if:

this is necessary for life-sustaining treatment or for the performance of "vital acts", in accordance with the conditions set out in section 4B MCA;
the deprivation is giving effect to a relevant decision of the court; or
the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty).

A Code of Practice to supplement the main MCA Code of Practice was issued by the Lord Chancellor in August 2008. This gives further information on how the new deprivation of liberty provisions should operate in practice and contains guidance intended for use by people exercising functions under these provisions.

When should the deprivation of liberty provisions be relied upon?

The deprivation of liberty provisions apply to people aged 18 or over who have a disorder or disability of the mind, who lack the capacity to give their consent to plans made for their care and who are deprived of their liberty within the meaning of Article 5 ECHR despite not being subject to formal detention under the Mental Health Act 1983 (MHA 1983).

The provisions cover hospitals (NHS or private) and care homes registered under the Health and Social Care Act 2008 in England (the Care Standards Act 2000 in Wales) and such deprivation will be unlawful unless the institution obtains an authorisation under the new provisions. In other settings, the deprivation will be unlawful unless the Court of Protection has made an order. Not all admissions to hospitals and care homes involving a person who lacks capacity to decide whether to be admitted will require an authorisation. According to the Code of Practice to the Deprivation of Liberty Safeguards, the new provisions exist only to provide a proper legal process and suitable safeguards in circumstances where deprivation of liberty is an unavoidable necessity in a person's own best interests. Every effort should be made to prevent deprivation of liberty becoming unavoidable.

Requesting an authorisation

Under the provisions, a body managing a care home or hospital (the "managing authority") must identify every person incapable of consenting to admission who is, or is at risk of being, deprived of his or her liberty. For each "relevant person" the managing authority must apply to a "supervisory body" for a standard authorisation for depriving that person of his or her liberty.

Who acts as the managing authority?

Where a person is under the Deprivation of Liberty Safeguards in an NHS Hospital, the hospital is the managing authority. For a private hospital or a care home it will be the person registered, or required to be registered, in England under the Health and Social Care Act 2008 in respect of the institution (or in Wales, under the Care Standards Act 2000).

Hospitals, as managing authorities, are responsible for making sure that they comply with the DOLS legislation and that members of staff comply with the MCA generally. This includes having a good understanding of what is involved in making DOLS referrals that are both timely and relevant, to supervisory bodies, and in following any DOLS conditions that may be set by a supervisory body.

Clinical Commissioning Groups (CCGs) are responsible for commissioning the hospital care that has to comply with DOLS and the MCA and for making sure that hospitals carry out the DOLS responsibilities set out in legislation.

Who is the supervisory body?

In England, before 1 April 2013, Primary Care Trusts (PCTs) acted as supervisory bodies for hospitals, where PCTs commissioned the care that involved a DOLS authorisation. However PCTs were abolished on 1 April 2013 and can no longer act as supervisory bodies.

From 1 April 2013 in England, regardless of whether the person is in hospital or in a care home, the supervisory body will now be the local authority, normally the local authority for the area in which the person is ordinarily resident, or, if the person is not ordinarily resident in the area of a local authority, the area in which the hospital or care home is situated. Hospital managing authorities must identify the correct local authority supervisory body by determining where the relevant person has ordinary residence.

If a person is ordinarily resident in an English local authority, that local authority will become the supervisory body. When they receive care or treatment in an English or Welsh hospital and arrangements for their care or treatment amount to a deprivation of liberty, the hospital must apply to that local authority for authorisation.

In Wales the supervisory body will continue to be the National Assembly for Wales in all cases where care or treatment in hospital is commissioned by the National Assembly or a Local Health Board (unless the person subject to DOLS has ordinary residence in England, when it will be a local authority in England). But where the person is in a care home, it will be the local authority for the area in which the person is ordinarily resident or, if the person is not ordinarily resident in the area of a local authority, the area in which the care home is situated.

Standard and urgent authorisations

The managing authority must request a standard authorisation if it appears likely that a resident is accommodated in circumstances that amount to a deprivation of liberty or it appears that this will be the case at some time during the next 28 days. In the meantime, an urgent authorisation may be issued by the hospital or care home itself if certain criteria are met (see below). A request must also be made for a standard authorisation even in cases where a resident is moving from a different establishment and a standard authorisation already exists in respect of that placement. The new managing authority must request the new standard authorisation before the move takes place although, again, there is provision for the new managing authority to make an urgent authorisation if the move has to take place so urgently that it is not possible to obtain a standard authorisation. As has been noted, the ECtHR did not define "deprivation of liberty" and whether someone has been deprived of liberty depends on the particular circumstances of the case. The Code of Practice provides guidance on what factors might amount to deprivation of liberty based on decisions of the ECtHR to date.

The Government's original proposals were amended during the passing of the MHA 2007 to allow a third party, who is concerned that there is an unauthorised deprivation of liberty taking place, i.e. someone who is not the person subject to DOLS or someone from the managing authority, to apply to the supervisory body to assess whether the person is deprived of liberty (see Reviewing and challenging below). If the outcome of this assessment is that there is an unauthorised deprivation of liberty, then the full assessment process must be completed as if an authorisation had originally been applied for.

Six assessments

The deprivation of liberty provisions will only apply to people 18 or over who have a disorder or disability of the mind, who lack the capacity to give their consent to plans made for their care and who are deprived of their liberty within the meaning of Article 5 ECHR despite not being subject to formal detention under the MHA 1983. Even where the provisions do apply, an authorisation can only be granted where it is:

in the best interests of the person that they be detained as a resident of the hospital or care home in circumstances which amount to a deprivation of liberty; and
necessary that the person be a patient in the hospital or care home in order to prevent harm to him or her
a proportionate response to the likelihood of suffering harm and the seriousness of that harm.

An authorisation must not conflict with a valid decision by an attorney or Court of Protection appointed deputy and may not be sought for giving treatment in a hospital where the MHA 1983 could be used instead, if there is any evidence that the person objects or would object. In order to ensure that the deprivation of liberty provisions apply and that the criteria are met the supervisory body must obtain six written assessments of the relevant person. These relate to age, mental health, mental capacity, best interests, eligibility and objections.

Age assessment

The age of the person will have to be established to ensure that the deprivation of liberty provisions apply. The person undertaking the age assessment could be a person conducting one or more of the other assessments.

Mental health assessment

This is to confirm that the person has been diagnosed as having a mental disorder within the meaning of the MHA 1983. This assessment must be carried out by a doctor.

Mental capacity assessment

The capacity of the person to make a decision as to whether they should be accommodated in the relevant hospital or care home will need to be assessed. Sections 1 to 3 MCA and chapter 4 of the Code of Practice to the MCA will be relevant to this assessment. It is likely to be undertaken by a doctor but Regulations allow for other appropriately qualified professionals to perform the assessment, such as social workers, nurses and occupational therapists.

Best interests assessment

This involves two stages. It must first be established whether deprivation of liberty is occurring, or is going to occur. If so, the second stage is to assess whether it is in the best interests of the person to be deprived of liberty, whether it is necessary for the person to be so deprived in order to prevent harm to themselves, and also whether the detention is a proportionate response to the likelihood of the person suffering harm and the seriousness of that harm. If deprivation of liberty is not occurring and not going to occur then there is no need for this second part of the assessment to be undertaken.

The best interests assessor will take into account the views of friends, family members, informal carers and professionals involved in the person's care. If the person is unbefriended, an Independent Mental Capacity Advocate (IMCA) will be appointed to support and represent them during assessment (see below). Regulations specify that the best interests assessment must be undertaken by an approved mental health professional (AMHP), social worker, nurse, occupational therapist or chartered psychologist with appropriate skills.

If the best interests assessment supports deprivation of liberty in the care home or hospital, the assessor should state for how long any authorisation should be given, with a maximum period of 12 months. The assessor can also recommend conditions to be attached to the authorisation, for example concerning contact with family members. Where the assessor concludes that the best interests requirement is not met but the person is being deprived of her or his liberty, a statement to that effect must be included in the assessment report.

Eligibility assessment

It must be confirmed that the person is not detained under the MHA 1983 or subject to a conflicting requirement under that Act such as being required to reside somewhere else under guardianship, for example. If the proposed authorisation relates to deprivation of liberty in a hospital, wholly or partly for the purpose of treatment of mental disorder, the assessment will have to establish that there is no evidence that the person objects or would object to mental health treatment. If the person is unable to state their objection, their behaviour, wishes, feelings, views, beliefs and values (present and past) should be taken into account. If there is reason to think that, if able to do so, the person would object, he or she should be taken to be objecting. If the assessment concludes that the person is not eligible but the best interests assessment concludes that deprivation of liberty is required, it may be appropriate to use the MHA 1983. The eligibility assessment must be carried out either by a mental health assessor who is also a section 12 approved doctor or a best interests assessor who is also an AMHP.

No refusals assessment

It must be ascertained whether an authorisation would conflict with a refusal on behalf of a person who lacks capacity to consent. A "refusal" for deprivation of liberty purposes includes a valid advance decision relating to some or all of the treatment that the person would receive if an authorisation was granted. It also includes a valid decision by an attorney or Court of Protection appointed deputy. The "no refusals" assessment can be undertaken by a person conducting one or more of the other assessments.

All assessments must be completed within 21 days from the date the supervisory body receives the request from a managing authority. Where an urgent authorisation is in force, the assessments will have to be completed before that authorisation expires. Any "equivalent assessment" already made may be used instead of obtaining a fresh assessment. An equivalent assessment is one carried out in the previous 12 months irrespective of whether it was made in respect of a deprivation of liberty authorisation, as long as it meets all the necessary requirements and the supervisory body is satisfied that there is no reason why it should no longer be accurate. There is no time limit on the use of an age assessment.

Regulations also set out who can carry out the particular assessments and the training and qualifications requirements. There must be a minimum of two assessors and the mental health and best interests assessments have to be carried out by different people. It is permissible for the best interests assessor to be an employee of the supervisory body or managing authority but they must not otherwise be involved in the person's care. Neither must the best interests assessor be on the staff of any care home or hospital where the relevant person is, or would be, residing. There are also bars on the assessor having a financial interest in the care of the person being assessed and being related to the person or someone else with a financial interest in the person's care.

It is acceptable for the supervisory body and managing authority to be the same, for example where a local authority owns the care home where the person is, or will be, residing. However, in this situation, the best interests assessor cannot be an employee of the supervisory body or managing authority.

Relevant person's representative

A "relevant person's representative" must be appointed by the supervisory body when a standard authorisation is granted. The role of the representative is to keep in touch with the relevant person and to represent and support them in all matters relating to the authorisation. The representative may request a review or make an application to the Court of Protection (see below). Representatives must be aged 18 or over, be willing to be appointed and be able to keep in touch with the relevant person. They must not be prevented by ill health from carrying out the role and must be someone independent; they cannot be engaged in providing care and treatment for the relevant person in a professional capacity or for remuneration.

During the best interests assessment, the assessor has to consider whether it is possible to recommend a representative. If the person being assessed has capacity to do so, they must be invited to select their representative and provided that person is eligible, the best interests assessor must recommend them. If the relevant person lacks the relevant capacity, the person to be recommended may be selected by an attorney or court appointed deputy with the appropriate authority. If neither the person nor an attorney or deputy make a selection then the best interests assessor must consider whether they can identify someone to act. If more than one person is identified the person who selected them must rank them in order of appropriateness.

The supervisory body appoints the person recommended by the best interests assessor (or the first choice) to become the relevant person's representative if he or she is willing. Although the best interests assessor should make recommendations about whom the representative should be, the appointment cannot take place unless and until an authorisation is given. If there is no one, the supervisory body must instruct an IMCA to represent the relevant person.

The Code sets out a number of situations in which the appointment of a relevant person's representative will terminate. Rather controversially, the supervisory body may terminate an appointment, for example if it considers that the representative may not be keeping in touch, although the Code states that the supervising body should contact the representative to clarify the position before terminating the appointment.

Actions following decision

Where authorisation is not granted

If any assessment concludes that the person does not meet the criteria, the supervisory body must turn down the request. The assessment process should be stopped as soon as it appears that any one or more of the qualifying requirements are not met. The supervisory body must notify the managing authority, the relevant person, any IMCA involved and every interested person consulted by the best interests assessor. The managing authority must ensure that it does not deprive a person of their liberty without an authorisation and the organisation which commissions the care will need to decide if any action is needed, bearing in mind the reasons for the authorisation being refused. If, for example, the best interests assessor concludes that there is no deprivation of liberty within the meaning of Article 5 then no action is likely to be needed. However, if the best interests assessor concludes that the proposed deprivation of liberty is not in the person's best interests, the care plan may need changing to avoid such a deprivation.

Granting authorisation

If all criteria are met, the supervisory body must grant the authorisation and specify its duration. A person must be deprived of liberty for the shortest time necessary to protect them from harm. The time period of an authorisation will be set on a case-by-case basis; the assessor will look at the person's circumstances and the likelihood of change and make a recommendation, which is based on the person's best interests. This must be no longer than recommended by the best interests assessor and for a maximum of 12 months. The Code states that for the maximum period to apply, the best interests assessor will need to be confident that there is unlikely to be a change in the person's circumstances, which would affect the authorisation within the 12 month timescale.

The authorisation must be in writing, confirm the purpose for deprivation of liberty and state why the supervisory body considers the criteria to be met. It must also set out any conditions attached to the authorisation, such as any steps to be taken in order to maintain family contact or meet cultural or other needs, and the managing authority must ensure that these are complied with. The managing authority must take such steps as are practicable to ensure that the person concerned understands the effect of the authorisation, the right to request a review and the right to make an application to the Court of Protection in connection with the giving of the authorisation. This information should also be made available to the person's representative. There is a power to make regulations reducing the maximum length of standard deprivation of liberty authorisations, if evidence that it is necessary to do so arises from future monitoring of the safeguards.

Renewing an authorisation

If the managing authority considers that deprivation of liberty will need to continue after the authorisation ends, it must request a further standard authorisation to begin immediately after the expiry of the existing authorisation. There is no limit on how far in advance of expiry a renewal application may be made. The timing will have to balance the need to allow enough time for all the required assessments to be undertaken against the need for meaningful assessments of the circumstances as they are likely to be at the time of the proposed expiry. The process for renewal is effectively the same as for the original authorisation.

Urgent authorisations

An urgent authorisation for deprivation of liberty may be given for a maximum of seven days and be extended, on one occasion only and in exceptional circumstances, for up to a further seven days. An extension is granted by the supervisory body but the initial urgent authorisation is granted to itself by the managing authority. It may do so where a request for a standard authorisation is required but it believes that the need for a person to be deprived of liberty is so urgent that it is appropriate to begin the deprivation either before the request is made or before the request is dealt with. The supervisory body may only grant an extension where it appears that a request for a standard authorisation has been made, there are exceptional reasons why it has not yet been possible to make a decision and continued deprivation of liberty is essential while the request is dealt with. Any urgent authorisation terminates as soon as the managing authority is notified by the supervisory body that a standard authorisation will not be granted.

Reviewing and challenging

Review of authorisations

The managing authority will be under a duty to monitor each person's case so that it can request a review if circumstances change. The supervisory body can be asked to undertake a review by the hospital or care home, or by the relevant person or their representative, on the grounds that certain circumstances have changed. It must carry out a review if asked by any of these parties and may do so at any other time. The supervisory body may need to arrange for new assessments to be undertaken in respect of any criteria affected by a change of circumstances. The outcome may be that the authorisation is terminated, the conditions are varied, or there is a change to the reasons that the person meets the criteria. The review process is set out in considerable detail in the Code. There are separate review arrangements in cases where the eligibility requirement ceases to be met for a short period of time to allow a period of detention under the MHA 1983. Here, the supervisory body may suspend the authorisation upon notification by the managing authority and if the person becomes eligible again within 28 days the suspension may be removed. At the expiry of the 28 day period the authorisation will cease to have effect if the managing authority has not notified the supervisory body that the person is eligible again.

Appeal to Court of Protection

The relevant person or their representative has a right of appeal to the Court of Protection, at any time, against the decision of the supervising body. Any other person may apply to the Court for leave to appeal. Legal aid is available for appeals, subject to the means and merits test.

For contesting a deprivation of liberty authorisation legal aid is available free for the relevant person or their representative. The Court may make an order which varies or terminates a standard or urgent authorisation or which directs the body which granted the authorisation to vary or terminate it.

Black and minority ethnic issues

The Code states that care should be taken to ensure that the deprivation of liberty provisions are not operated in a manner that discriminates against particular racial or ethnic groups. However, the guidance afforded is rather general in nature. As one might expect, it states that the required assessments should take account of the cultural, racial and ethnic background of the relevant person, as should decisions about the appointment of IMCAs or relevant person's representatives. The Code also states that interpreters should be available to help assessors communicate with the relevant person and people with an interest in their care and treatment, and that information should be made available in other languages where necessary.

Further information

This legal briefing relates to the law of England and Wales in force at the time of writing. It is a brief outline of the law and is not a substitute for detailed advice.

For further information about the work of Mind's legal unit please refer to this introductory page.

For more detailed advice on any of the issues discussed in this briefing you should take advice from a solicitor specialising in this area of the law. Details of how to find a specialist solicitor can be obtained from the Law Society (www.lawsociety.org.uk, telephone 020 7320 5650) or from Civil Legal Advice, telephone 0845 345 4345. Alternatively, you could contact your local Law Centre or Citizens Advice Bureau, who may be able to help.

Mind Legal Unit
15-19 Broadway
Stratford
London
E15 4BQ
April 2013

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Mental Capacity Act 2005

Overview and key provisions

Introduction

The MCA Code of Practice

To whom does the MCA apply?

The MCA principles

What does "lacking capacity" mean?

How is a person's capacity assessed?

What happens if a person lacks the capacity to make a particular decision?

How are best interest decisions made?

The Deprivation of Liberty Safeguards

Powers and duties of decision makers

The Court of Protection

Powers of the Court of Protection

When should an application to the Court of Protection be made?

Who can make an application to the Court of Protection?

Public funding

Deputies

Restrictions on deputies’ powers

The Office of the Public Guardian

Independent Mental Capacity Advocates

Who are IMCAs?

When must an IMCA be appointed?

When may an IMCA be appointed?

What does an IMCA do?

What is the difference between an IMHA and an IMCA?

Relationship between the Mental Health Act 1983 and the Mental Capacity Act 2005

Further information

Financial Decisions

Introduction

Meaning of capacity

Best interests

What are financial affairs?

Contracts

Wills

Social security

Lasting Powers of Attorney

The Court of Protection

The Public Guardian

Independent Mental Capacity Advocates

Further information

Healthcare and Welfare Decisions

Introduction

Meaning of Capacity

Best Interests

What are healthcare decisions?

What are welfare and personal care decisions?

Advance decisions (which may also be referred to as advance directives)

Lasting Powers of Attorney

Deputies appointed by the Court of Protection

The Court of Protection

The Public Guardian

Independent Mental Capacity Advocates

Further information

Deprivation of liberty safeguards

Overview

When should the deprivation of liberty provisions be relied upon?

Requesting an authorisation

Who acts as the managing authority?

Who is the supervisory body?

Standard and urgent authorisations

Six assessments

Age assessment

Mental health assessment

Mental capacity assessment

Best interests assessment

Eligibility assessment

No refusals assessment

Relevant person's representative

Actions following decision

Where authorisation is not granted

Granting authorisation

Renewing an authorisation

Urgent authorisations

Reviewing and challenging

Review of authorisations

Appeal to Court of Protection

Black and minority ethnic issues

Further information

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