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Mental Capacity Act & DOLS Course

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Course Objectives

At the end of the session participants will in relation to MCA & DOL’s be able to:

List the functions of the Mental Capacity
Describe the groups that will be affected by the legislation
Explain what is meant by the term ‘best interests’
Explain the role of Lasting Power of Attorneys
Describe the function of the Court of Protection
Explain the Deprivation of Liberty Safeguards.

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Developed to bring together and integrate existing law
Puts the needs and wishes of a person who lacks capacity at the centre of any decision-making process.

What is the Mental Capacity Act?

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People working in a professional capacity, e.g. doctors, nurses, dentists and social workers
People who are paid to care or support, e.g. home care workers and care assistants
Anyone who is a deputy appointed by the Court of Protection
Anyone acting as an independent mental capacity advocate (IMCA)
Anyone carrying out research involving people who may lack capacity.

People who are affected by the Act

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Many people with the following:

Dementia
Learning disabilities (especially severe learning disability)
Brain injury
Severe mental illness
Temporary loss of capacity, for example because somebody is unconscious because of an accident or anaesthesia or because of alcohol or drugs or an infection
and anyone planning for the future.

Who else will be affected?

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A person must be assumed to have capacity unless it is established that they lack capacity
A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success
A person is not to be treated as unable to make a decision merely because they make an unwise decision
An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests
Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Five Principles

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What is ‘Lack of Capacity’?

An individual lacks capacity if they are unable to make a particular decision
This inability must be caused by an impairment or disturbance in the functioning of the mind or brain, whether temporary or permanent
Capacity can vary over time and depends on the type of decision. It is time and decision specific.

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Questions to be considered

Does the person have the ability to:

Understand the information?
Retain information related to the decision?
Weigh, use or assess the information while considering the decision?
Communicate the decision by any means?.

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What triggers an assessment?

Staff should start from a presumption of capacity then take into account:

The person’s behaviour
Any concerns raised by other people
The person’s lack of capacity to make decisions in the past.

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What kind of help, could someone need to make a decision?

Provide all relevant information using simple language or other formats e.g. Pictorial, large print etc
Don’t give more detail than required
Include information on the consequences of making, or not making, the decision
Provide information on options
Consult with family and care staff on the best way to communicate and known information about the person’s previous views about the particular decision wanting to be made
Be aware of any cultural, ethnic or religious factors that may have a bearing
Make the person feel at ease
Try to choose the best time of day for the person
Try to ensure the effects of any medication are considered
Take it easy-one decision at a time
Don’t rush
Be prepared to try more than once i.e. can the decision be left to another time.

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This person will usually be the person who is directly concerned with the person at the time the decision needs to be made, i.e. the person about to provide care or treatment, or commission a health or social care package. (MCA Code of Practice (CoP) chapter 4.38)

Note: Section 5 of the MCA gives protection from liability.

Who can be a decision maker

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Day-to-day - record and review, but elaborate records are not required on every occasion about decisions/acts of care. Important decisions must be recorded accurately

Professional records - record assessments of capacity

Formal reports as required.

Records and record keeping

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When making a best interest decision what do you think you should take account of?.

EXERCISE Best Interests

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When making decisions, staff should take account of:

Equal consideration and non-discrimination
Considering all relevant circumstances
Regaining capacity
Permitting and encouraging participation
The person’s wishes, feelings, beliefs and values
The views of other people
Special considerations for life-sustaining treatment.

Best Interests Considerations

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MCA defines restraint as:

The use or threat of force to help to do an act which the person resists, or
The restriction of the person’s liberty of movement whether or not they resist.

Restraint Issues

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As a group read through and discuss the scenario concerning Tom and make decisions on the two questions posed.

Tom - Capacity Exercise

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‘Mrs X lacks capacity to decide if she should receive help with her personal care at this time. This is determined under MCA because her memory problems mean she is not able to understand that she cannot manage these tasks herself and cannot weigh up the risk she faces if she does not have this help. There is a high risk to Mrs X’s health and wellbeing if she does not receive this help. I have consulted with Mrs X’s daughter and I have concluded that it is in her best interests to receive help with her personal care. Care assistants should encourage and support Mrs X to accept this help in the least restrictive way.’

Recording ‘ Best Interest’ decision on a care plan - example

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Is an extension of the Mental Capacity Act

“Depriving someone of their liberty can be a necessary requirement in order to provide effective care or treatment”.

Deprivation Of Liberty Safeguards

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Isn’t Deprivation of Liberty always a bad thing?
Does DOLS affect everyone living in a care home that lacks capacity?
Do care homes need an authorisation to use physical restraint?
What if the door to the care home is locked?
What do I do if I think someone is deprived of their liberty without an authorisation?.

DOLS Discussion Points