Legal Framework

THE MENTAL CAPACITY ACT 2005

Planning Ahead
The MCA gives us the opportunity and responsibility to make plans for our own incapacity. We should plan ahead. Many people make wills to plan for death. Surely it is more important to decide who should be able to make decisions for us if we can no longer do that for ourselves. The Lasting Power of Attorney (LPA) allows us not only to choose who we would want to make our financial decisions, but now can also cover health and welfare decisions as well. This means e.g.  that we can chose who has the power to decide where we live or consent to treatment on our behalf. The personal welfare attorney gives legal effect to the power that we wrongly thought we had as next of kin.

We can also say in advance of Losing capacity what treatment we would not agree to if we lost capacity. This is called an advance decision to refuse treatment.

What does lacking capacity mean?
Having capacity means that we are able to take responsibility for our own decisions however unsafe they may be. Taking risks is part of life as any smoker would know. We can decide to refuse medical treatment where the consequence of that refusal might be our own death. On the other hand, However, some people, for a variety of reasons, might not have the capacity to take that responsibility. They may be able to make some decisions for themselves but not others. Capacity is both time and decision specific. There is a real danger that we sometimes wrongly assume that someone lacks capacity merely because of a label like Alzheimer’s or learning disability. A person with Downs Syndrome may have sufficient capacity to decide who they have a relationship with or where they live. If you want to control someone’s life deciding they lack capacity is very convenient.

How will decisions be made if we do not plan ahead?
The MCA gives lawful general authority to make decisions the person who is responsible for the outcome of that particular decision and, as long as proper procedures are followed, section 5 MCA gives protection from liability. If the next of kin is not the ‘decision maker’ then they have no legal right to make the decision. The attorney under a properly drawn LPA covering that issue however does.

If an elderly person lacks capacity and is being cared for at home by their younger daughter then it would be she and not the eldest son (next of kin) who would have the ability to make day to day decisions for them. If someone is unhappy about this or there is an argument as to what is in a persons’ best interest there will be a mechanism for resolving those disputes through the revamped Court of Protection.


Deprivation of Liberty Safeguards (DOLS) under the Mental Capacity Act.
If someone who lacks capacity is deprived of his or her liberty in any hospital or care home, this is now against the law unless there is a deprivation of liberty authorisation (DOLA) granted by the local authority or PCT.

In order to protect our human rights, if the state wants to deprive us of our liberty they cannot do it arbitrarily. There must use a procedure that the law prescribes. This right is protected by Article 5 European Convention of Human Rights. If someone is arrested, the police have to follow procedures, to be sectioned under the MHA there are strict rules with a right of appeal to a mental health tribunal.

However, if I think that you cannot now make decisions for yourself, I can arbitrarily decide to deprive you of your liberty. Yes it will be dressed up in a benign way. It is for your ‘best interests’, we are doing it to ‘protect’ you.

But where is the procedure prescribed by blaw, where is the check mechanism, to which court can we go if we want to challenge this deprivation of our liberty? Before the 1st April, the answer was, ‘tough’.

Before people can remove your freedom they are required by law to assess your capacity first. How often is that done?

If I want to take risky decisions for myself, I can. If I want to refuse to go to a hospital or care home, I can. That is because the law allows a capacitated person to take personal responsibility for the outcome of their own decisions. Taking risks is part of life.

How many learning disabled people are prevented from making their own decisions even though they are able to understand the consequences of those decisions?

Where a person is deprived of their liberty in a hospital or care home the safeguards (known as DOLS) mean that six separate assessments need to be carried out by at least two assessors, one of whom must be a doctor.

The Best Interests Assessor must be independent and will have to establish whether the person is actually deprived of their liberty and if so, is it in their best interests to prevent harm.

An important part of the safeguards is the appointment of a ‘representative’. All those with DOLAs must have one. This person, who could be a family member, friend, IMCA or professional representative, must make sure that the persons’ human rights are respected whilst they are deprived of their liberty.

One reason that the authorisation might be refused could end up costing local authorities millions of pounds.

If the person is deprived of their liberty, and they are in a general or psychiatric hospital where some of their treatment involves treatment for their mental disorder, if they meet the criteria for sectioning under the Mental Health Act and they are objecting to treatment, then they would have to be sectioned to authorise the deprivation of liberty. If they were detained under s 3, then the effect of this could be dramatic. It would most probably mean that they would be entitled to free after care (including care home fees) non means tested for life under s 117 Mental Health Act.