Capacity, best interests and deprivation of liberty

Amara The Mental Capacity Act gets quoted in every handover I have ever attended. How often is it quoted correctly?

Nadia Not often, and there is one error that dwarfs all the others. Treating capacity as a status.

Amara As in, he lacks capacity.

Nadia Exactly that sentence. It is unlawful, and it strips a person of decisions they can still make. Capacity is decision specific and time specific. A woman may lack capacity to decide where to live and retain capacity to choose her clothes, her food, whether to have a flu jab, and who visits her.

Amara Give me the five principles.

Nadia Assume capacity. Support the person to decide before you conclude they cannot. An unwise decision is not incapacity. Act in best interests. Choose the least restrictive option.

Amara And the test itself?

Nadia Two stages. Is there an impairment or disturbance in the functioning of the mind or brain. And if so, is the person unable to do one of four things. Understand the relevant information. Retain it long enough to decide. Use or weigh it. Or communicate the decision.

Amara Retain it long enough. That phrase does some work.

Nadia It does, and it is missed constantly. Long enough to make the decision. A person who forgets the conversation half an hour later may have had perfectly good capacity at the moment they decided. Forgetting afterwards is not incapacity.

Amara Best interests. What has to be considered?

Nadia Section 4 sets it out. Whether they might regain capacity and whether the decision can wait. Involving them as fully as possible, which people skip entirely. Their past and present wishes, including anything they wrote down when they had capacity. Their beliefs and values. And consulting anyone they named, plus carers, family, an attorney or a deputy.

Amara What must it not be based on?

Nadia Age, appearance, condition or behaviour. Which is in the Act because those are precisely the shortcuts people take.

Amara Let us do power of attorney, because I think this is where families and staff argue most.

Nadia It is, and the confusion is almost always the same one. There are two types and they do completely different things.

Amara Go on.

Nadia Property and affairs covers money and property. It gives no authority whatsoever over care and treatment. None. Health and welfare covers care and treatment, and only takes effect once the person lacks capacity for that decision.

Amara So a son waving a power of attorney at me demanding I stop his mother going out?

Nadia Ask to see it, and read which type it is. Nine times out of ten it is property and affairs, and it gives him no say at all in that decision. And even a health and welfare LPA only allows refusal of life sustaining treatment if it expressly says so.

Amara Advance decisions?

Nadia An advance decision to refuse treatment is legally binding if it is valid and applicable. To refuse life sustaining treatment it has to be in writing, signed, witnessed, and say expressly that it applies even if life is at risk. An advance statement of wishes is different: not binding, but it must be taken into account.

Amara Right, DoLS. Give me the test.

Nadia Two limbs, from Cheshire West. Continuous supervision and control. And not free to leave. Both, plus lacking capacity to consent to the arrangements, means a deprivation of liberty that must be authorised.

Amara What if the person is perfectly happy?

Nadia Still a deprivation. The judgment was explicit. A gilded cage is still a cage. Contentment is not consent, and a lovely placement still needs lawful authority.

Amara Who authorises it?

Nadia In a care home or hospital, DoLS: the managing authority applies to the supervisory body, with an urgent authorisation available for up to seven days while the standard one is decided. In supported living, shared lives or somebody's own home, it has to be the Court of Protection.

Amara Here is my last question and I suspect the uncomfortable one. How many services are depriving people of liberty without authorisation right now?

Nadia More than believe they are. Look at the combination rather than any single restriction. A keypad door the person cannot operate. Constant observation. Control over when and whether they go out. Sedating medication. And being brought back if they leave.

Amara Any one of those sounds ordinary.

Nadia Any one of those is ordinary. All five together is detention. And if that describes somebody in your service and there is no authorisation, that is unlawful detention, and raising it is not disloyalty. It is the job.