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Mental Capacity Act, 2005

The Mental Capacity Act became law in April 2005. It came into force in 2007. 

The Deprivation of Liberty Safeguards (DoLS) - an amendment to the Mental Capacity Act 2005 – came into effect on 1 April 2009.

What Does the Act Do?

Every day people make decisions about things in their lives. The ability to make these decisions is called mental capacity.

This law supports people who have difficulty in making decisions for themselves or who want to plan ahead in case they are unable to make decisions in the future. 

The law established the office of the Public Guardian and revised the powers of the Court of Protection. (More information on this can be found on the Welsh Government website)

If the Person who lacks capacity does not have any family or friends to represent them, there is now a statutory duty to appoint a paid representative (Independent Mental Capacity Advocate).

The Deprivation of Liberty Safeguards provide legal protection for people who are, or may become, deprived of their liberty, for example in a hospital or care home. Depriving someone of their liberty without following the appropriate legal process is a breach of the European Convention on Human Rights.

The Welsh Assembly Government has issued a code of practice on the DoLS.  

The five key statutory principles of the Safeguards are:

1. A person must be assumed to have capacity unless it is established that s/he lacks capacity.

2. A person is not to be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success.

3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

4. 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 his/her best interests.

5. 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 as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Who can refer?

Any Managing Authority (ie. A Manager of a Residential, Nursing Home or Hospital Ward).

Any third party who feels that a DoL is taking place. (eg. Social Worker, CSSIW Inspector, Family member, visitor, or advocate).

Assessments under the Deprivation of Liberty Safeguards
Once an application is made, the Supervisory Body (The Local Authority or Health Board in the area that the deprivation is taking place), will have to appoint ‘assessors’ to positively assess each of the following ‘qualifying criteria’:

  • that the individual is over 18;
  • that the individual is of unsound mind (a mental health assessment);
  • that the individual lacks capacity;
  • that the individual is not subject to the Mental Health Act 1983 (and so ineligible for treatment under the Mental Capacity Act 2005);
  • that any deprivation of liberty would not conflict with  any valid advanced decisions made by the individual, or under a lasting power of attorney
  • that the deprivation of liberty would be in the best interests of the individual.

The Best Interest assessments must be completed within 21 days of receipt of request. 

If all the criteria are satisfied then an authorisation must be given by the Supervisory Body.  The maximum duration of a standard authorisation is 12 months.

Authorisation must be in writing and include the purpose of the deprivation of liberty, the time period, any conditions attached, and the reasons that each of the qualifying criteria are met. 

Appeals against decisions can be made to the Court of Protection.

Contact details for Bridgend County Borough Council Supervisory Body
Secure Fax number for referrals 01656 642483
Deprivation of liberty Safeguards Co-ordinator, Telephone 01656 642213
Group Manager, Mental Health 01656 642476

 

Last Updated: 05/11/2013
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