# Mental Capacity Act and Deprivation of Liberty Safeguards

*The Act that most often gets quoted wrongly, and the safeguards that exist because a gilded cage is still a cage.*

## Production summary

- Modules to record: 2
- Total script: 1299 words, about 9 minutes of finished audio
- Voices: Amara (host) and Nadia (practice educator)
- Level: Level 2 to 3, all adult care staff

## Accreditation wording that must appear in the description

- **The CPD Certification Service** (planned): Application scheduled.

> Do not upgrade any of these words in a description or a thumbnail. Aligned is not accredited, and planned is not approved.


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## Capacity, best interests and deprivation of liberty

**Runtime** about 5 minutes. **Words** 744. **Starts at** 00:00 in the full course recording.

### Learning outcomes to state on camera

- Apply the five principles and two stage test correctly
- Run and record a best interests decision
- Identify the authority given by each type of LPA and by an advance decision
- Apply the acid test and recognise unauthorised deprivation

### Script


`[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.

### Sources for the on screen credit

- Mental Capacity Act 2005, legislation.gov.uk
- Mental Capacity Act Code of Practice, Ministry of Justice
- P v Cheshire West and Chester Council [2014] UKSC 19, UK Supreme Court
- Decision making and mental capacity, NG108, NICE

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## Best interests decisions, restraint and advocacy

**Runtime** about 4 minutes. **Words** 555. **Starts at** 04:57 in the full course recording.

### Learning outcomes to state on camera

- Chair or contribute to a best interests decision correctly
- Explain when an IMCA must be instructed
- Apply sections 5 and 6 on acts in connection with care and restraint
- Recognise unlawful restraint, including chemical and environmental

### Script


`[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.

### Sources for the on screen credit

- Mental Capacity Act 2005, sections 4, 5 and 6, legislation.gov.uk
- Mental Capacity Act Code of Practice, chapters 5 and 6, Ministry of Justice
- IMCA service guidance, Social Care Institute for Excellence

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