Mental Capacity Act and Deprivation of Liberty Safeguards

Cue 1 Five principles as five cards, with assume capacity foregrounded.

AMARA 00:00 The Mental Capacity Act gets quoted in every handover I have ever attended. How often is it quoted correctly?

NADIA 00:07 Not often, and there is one error that dwarfs all the others. Treating capacity as a status.

AMARA 00:14 As in, he lacks capacity.

NADIA 00:16 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 00:37 Give me the five principles.

Cue 2 Two stage test flowchart with the four functional abilities.

NADIA 00:39 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 00:50 And the test itself?

NADIA 00:51 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 01:10 Retain it long enough. That phrase does some work.

NADIA 01:14 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.

Cue 3 Retention clarification card: long enough to make the decision.

AMARA 01:30 Best interests. What has to be considered?

NADIA 01:32 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 01:55 What must it not be based on?

NADIA 01:58 Age, appearance, condition or behaviour. Which is in the Act because those are precisely the shortcuts people take.

AMARA 02:05 Let us do power of attorney, because I think this is where families and staff argue most.

Cue 4 LPA comparison table: property and affairs versus health and welfare.

NADIA 02:12 It is, and the confusion is almost always the same one. There are two types and they do completely different things.

AMARA 02:20 Go on.

NADIA 02:21 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 02:36 So a son waving a power of attorney at me demanding I stop his mother going out?

NADIA 02:42 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.

Cue 5 Cheshire West acid test with both limbs required.

AMARA 03:02 Advance decisions?

NADIA 03:03 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 03:26 Right, DoLS. Give me the test.

NADIA 03:28 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 03:41 What if the person is perfectly happy?

Cue 6 Restriction stack showing five ordinary restrictions combining into detention.

NADIA 03:44 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 03:54 Who authorises it?

NADIA 03:55 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 04:14 Here is my last question and I suspect the uncomfortable one. How many services are depriving people of liberty without authorisation right now?

NADIA 04:24 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 04:40 Any one of those sounds ordinary.

NADIA 04:42 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.

Cue 1 The person in the room versus the person in the file.

AMARA 04:57 We hold best interests meetings. Are we doing them right?

NADIA 05:01 Ask yourself one question. Was the person in the room, or in the file?

AMARA 05:07 In the file, usually.

NADIA 05:08 Then probably not. Section 4 says the person must be involved as fully as possible. Not consulted about. Involved.

Cue 2 Section 4 checklist with wishes, beliefs and values weighted.

AMARA 05:16 Even if they cannot follow a meeting?

NADIA 05:19 Then you go to them, at a time and in a way that suits them, and you record what they communicated including non verbally. Somebody who cannot follow a meeting can still show you very clearly that they hate the shower and love being outside.

AMARA 05:37 How much weight do their wishes carry?

NADIA 05:40 Real weight. Past and present wishes, anything written down when they had capacity, their beliefs and values, and the things they would have considered.

Cue 3 IMCA trigger: no one appropriate to consult, with paid staff excluded.

AMARA 05:49 And if the clinically best option is the opposite?

NADIA 05:53 Then you have a genuinely hard decision, which is what the process is for. But a decision that is clinically optimal and contrary to everything the person ever expressed is not a best interests decision. It is a professional preference with a form attached.

AMARA 06:10 What must never come into it?

NADIA 06:13 Age, appearance, condition or behaviour. Those four are named in the Act specifically because they are the shortcuts people take.

Cue 4 Section 6 two conditions: necessity and proportionality to likelihood and seriousness.

AMARA 06:21 When do we need an advocate?

NADIA 06:23 An IMCA must be instructed where the person lacks capacity, there is nobody appropriate to consult other than paid staff, and it is serious medical treatment or a change of accommodation.

AMARA 06:36 We know our residents very well.

NADIA 06:38 You do, and for this purpose a paid carer does not count. That is not an insult, it is the entire point. The advocate exists so an unbefriended person has somebody whose only interest is theirs, with no service, no rota and no budget in the background.

Cue 5 Four kinds of restraint: physical, chemical, environmental, psychological.

AMARA 06:57 Let us do restraint, because I think we do things we do not call restraint.

NADIA 07:03 Almost every service does. Section 5 protects you for acts done in connection with care, if you reasonably believed the person lacked capacity and it was in their best interests.

AMARA 07:15 And section 6?

NADIA 07:16 Restricts that where restraint is used. Two conditions, both required. You reasonably believe it is necessary to prevent harm to that person. And it is proportionate to both the likelihood of the harm and how serious it would be.

Cue 6 Restraint escalating past the line into deprivation of liberty, needing authorisation.

AMARA 07:32 Define restraint for me, because I think we are narrow about it.

NADIA 07:36 Using or threatening force to make somebody do something they resist, or restricting their liberty of movement, whether or not they resist.

AMARA 07:45 Whether or not they resist.

NADIA 07:47 Which is the phrase that catches everybody. And it is not only physical. Sedating medication given to manage behaviour rather than treat a condition is chemical restraint. A keypad they cannot operate is environmental restraint. Removing somebody's walking frame or their shoes is restraint.

AMARA 08:05 We take shoes off at night.

NADIA 08:07 For comfort, or so they do not go out? Because those are the same action with completely different legal characters, and only one of them needs the necessity and proportionality test.

AMARA 08:20 And telling somebody they are not allowed out?

NADIA 08:23 Psychological restraint, and it is the one nobody records at all. Same test. And if what you are doing goes beyond restraint into continuous supervision and not free to leave, section 6 does not authorise that. That needs a DoLS authorisation.