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Mental Capacity Act 2005

The Mental Capacity Act is a law to empower and protect people aged 16 and over, who lack mental capacity to act or make decisions for themselves.

This could include people with:

  • dementia
  • brain injury
  • a stroke
  • alcohol or drug misuse
  • the side effect of medical treatment
  • any other illness or disability.

The Mental Capacity Act explains who can make decisions on behalf of someone who can’t make decisions for themselves. It also explains how people who have mental capacity can prepare for a time when they lack mental capacity in the future, by setting up a lasting power of attorney.

What is mental capacity?

When we talk about mental capacity, we mean our ability to choose what we want for ourselves. If a learning disability, mental health condition or dementia means you can’t understand the decision, remember enough information to weigh up your choices, or communicate your decision, you may be assessed as lacking capacity.

The Mental Capacity Act says:

  • Everyone has the right to make their own decisions.
  • You should be given as much support as possible to make your decision and communicate your wishes.
  • Making a decision that seems unwise or unusual does not mean a person lacks capacity to make that decision.
  • If a person has been assessed as lacking capacity to make a certain decision, any decision made on their behalf must be in their best interests;
  • The option that restricts their rights and freedoms the least.

An important principle of the Mental Capacity Act is that a person must be assumed to have capacity unless it is shown they do not.

Deprivation of Liberty Safeguards

The Deprivation of Liberty Safeguards (DoLS) are part of the Mental Capacity Act 2005 and are designed to provide legal protection where someone needs to be deprived of their liberty for the purposes of providing care or treatment.

The safeguards affect people:

  • aged 18 or older
  • who are being cared for in a care home or hospital
  • who lack capacity to consent to care and treatment, and
  • have a disorder of the mind or brain.

Deprivation of Liberty Safeguards (DoLS) are put in place to protect a person’s human rights. They make sure that professionals follow a process, set out in law, to make sure that any restrictions on a person’s ‘liberty’ are in their ‘best interests.’ These ‘safeguards’ include:

  • a ‘Relevant Person’s Representative’ – this is a family member, friend or paid advocate who will visit regularly and check the person is happy where they are living and the support they receive. For people without family or friends to support and look after their interests, there is an independent mental capacity advocacy service in Portsmouth provided by Solent Mind. Representatives can access the advocacy service for support.
  • a right to ‘challenge’ the deprivation of liberty in the Court of Protection.

These ‘safeguards’ or supports make sure everything is clear and as fair as possible.

Who needs to know about the Mental Capacity Act and Deprivation of Liberty Safeguards?

The act is relevant to everyone who makes decisions on behalf of people who lack capacity – family, friends, or professionals.

If you believe a person is deprived of their liberty and meets this criteria (known as the ‘acid test’):

  • Is under continuous supervision and control, and
  • Not free to leave

You can ask the care home or hospital to apply to the council for authorisation. Deprivation of Liberty is serious, and the care home or hospital should look into this quickly.

If you believe a person is deprived of their liberty without authorisation, you can contact the council and ask us to investigate whether an unlawful deprivation of liberty is taking place. Call the adult social care helpdesk on 023 9268 0810.

How do I make a DoLS application?

If you work in a registered care home or hospital (a managing authority) you must make a DoLS application to the council if there is any possibility that care or treatment arrangements will deprive a person of their liberty. For local enquiries and to return the DoLS application form, email DoLS@portsmouthcc.gov.uk.

Liberty Protection Safeguards

The Liberty Protection Safeguards (LPS) are a new legal framework introduced in the Mental Capacity (Amendment) Act 2019. They are intended to replace the Deprivation of Liberty Safeguards (DoLS) system.

LPS will create new responsibilities for local authorities, NHS hospitals and Integrated Care Boards (ICBs). They will apply to those aged 16–17 and people living in settings such as:

  • supported living,
  • shared lives,
  • private hospitals,
  • residential special schools and colleges, and
  • people’s own homes

While we wait for the LPS Code of Practice and regulations to be finalised, we are planning how best to support these changes. We will update this page once we know more.