Mental Capacity in Care: MCA and DoLS

Decisions have to be made and very difficult conversation have to be had, to keep someone who is classed as vulnerable safe, and to ensure they are receiving the best care and support needed. When a person has the capacity to contribute to the decision-making process and understand the reasons behind the outcomes of assessments and the concerns of others, it can be tricky, however, this is relatively straight forward. So long as you keep in good communication with everyone, and try to see the situation from other points of view, you can usually middle through to a great outcome that makes the person being cared for, as happy as possible.

When someone does not have the capacity to understand or make decisions this process becomes incredibly difficult and upsetting, especially for their primary caregiver (probably you) and them. Without their input it becomes difficult to know what they want, so their guardian is left to make all the decision on their own.

If you find yourself in that position or approaching that position, it is important to understand the Mental Capacity Act (MCA).

To keep this short and digestible, we will summarise some of the guidance here and share a few useful resources, so that you can get yourself up-to-speed. We aren’t going to tell you what to do or how to approach making decisions, although we do have some guidance on that here.

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What is mental capacity?

For a person to have mental capacity they must be able to safely make their own decisions. The Mental Capacity Act (MCA) consists of five key principles:

• A presumption of capacity. Every adult has a right to make their own decisions. Do not assume they do not have capacity just because they are suffering from a medical condition or a disability
• Be supported. People must be supported and encouragement must be given to including the person in making decisions
• People have the right to make a decision which others may not agree with because of their own personal beliefs. Unless there is a safeguarding issue you cannot assume a lack of capacity 
• Best Interest. All decisions must be made with the person’s best interest in mind if they are lacking the capacity
• Less Restrictive Option. Any person making the decisions must decide if they are interfering with their personal rights and freedom. Any intervention should be proportional to the circumstances  

It is designed to protect individuals that are unable to make decisions because they may not be able to act or think in a rational way. This can be due to the following:

• Medicines that may cause confusion, drowsiness or unconsciousness
• Disability 
• Use of alcohol and drugs
• Stroke or brain injury
• Dementia and other neurological conditions
• learning disability
• Mental health problems
• Unconsciousness 

It advises that, if a person is not able to do one or more of the functions below, they may be lacking the mental capacity to make their own decisions:

• Unable to understand the information given to them
• Cannot retain information long enough to make a decision 
• Find it tough to weigh up the information available to make a decision 
• They can’t communicate their decision

The decisions made under the MCA, through the NHS or otherwise, can have a huge impact on a person’s life and wellbeing. so, the welfare decisions can range from how a person manages their money and who can help them with everyday tasks, to who makes complex serious life and death decisions.

How do I get an assessment?

Generally, this will be part and parcel of a declining medical condition, so you won’t have to ask. However, you can always go to your GP to express your concerns and they will determine if an assessment is warranted.

Assessments are usually carried out by your local social services and will involve family, friends and the NHS professionals needed to contribute to the consultations. It tries to find a balance between consent and capacity, as well as the wishes of the family.

If you don’t agree with the outcome, first speak to the assessor and try to reason with them. If this doesn’t work, ask for their manager or speak with whichever body arrange for the assessment to be done (Social services, NHS, etc).

There are also safeguards, under the Deprivation of Liberty Safeguards (DoLS) meaning that an individual’s rights to chose are protected as far as possible so that their freedom is not restricted, within reason.

Finally, if you are ever in doubt, or think that an individual’s capacity has changed you should immediately report it to your GP or other NHS professional, to ensure their personal safety and wellbeing. If at any time you believe that a person is being deprived or held in a restrictive manner and has clear mental capacity, this MUST be brought to the attention of authorities. Here is some detailed information about assessments, to make things clearer.

The full and detailed versions can be found and read other sites, which also give you information and people to talk to. The following are very useful:

• www.england.nhs.UK 
• www.legislation.gov.uk,
• www.gov.uk/government/collections/mental-capacity-act-making-decisions
• www.cqc.org.uk/help-advice/mental-health-capacity/about-mental-capacity-act
• www.alzheimers.org.uk
• https://www.rethink.org/advice-and-information/rights-restrictions/mental-health-laws/mental-capacity-act/
• www.medicalprotection.org/uk/articles/assessing-capacity
• www.gov.uk/goverment/publications/mental-capacity-act-code-of-practice

If you have found this useful or if we have gotten anything wrong, please do let us know. And if you have any questions, please get in touch, by clicking on the chat icon to the right of your screen, or by going to the contact us section.