MCA, DoLS and LPS – Everything Care Providers Need to Know

The Mental Capacity Act 2005 (or MCA) is a fundamental piece of legislation that applies to England and Wales. It provides a legal framework for making decisions on behalf of individuals who may lack the mental capacity to do so themselves. Their ability to make decisions for themselves should be assessed at a particular time, for example, when their mind is affected by a medical condition. Keep in mind that situations can change and a review of the capacity determination may be required. You must never decide that someone lacks capacity due to their appearance, age, behaviour or condition.

The MCA came into force in 2007 and should be followed by everyone involved in the care, treatment and support of incapacitated people over the age of 16. The MCA was designed to protect and restore power to these individuals who lack capacity.

5 Principles Mental Capacity Act

It’s important to understand that the MCA has been built upon 5 principles. You can use them to support your decision-making process. So, what are the 5 principles of the mental capacity act?

1.       The presumption of capacity

All adults have the right to make their own decisions and must be assumed to have the capacity to do so unless proven otherwise. You should not assume that someone can’t make decisions for themselves due to them having a specific medical condition or disability.

2.       Support to make a decision

You should make every effort to support and encourage people to make their own decisions before they are treated as not being able to do so. If you establish a lack of capacity, it’s still important that you get the person involved as much as possible in making any kind of decision.

3.       Ability to make unwise decisions

Everyone has the right to not be treated as if they lack capacity just because they make a decision that may be deemed as poor or ‘unwise.’ Individuals have their own preferences, values and beliefs which may not be the same as yours or other people of similar capacity.

4.       Best interest

If someone truly lacks mental capacity and it’s your responsibility to make many or all of the decisions for them, anything you do on behalf of this person must be done in their best interest. Consider any past or present beliefs, values and wishes a person may have expressed previously, alongside potential risks.

5.       Least restrictive option

Someone who has to make a decision or act on behalf of an incapacitated person must consider whether their decisions or actions interfere with the person’s rights and freedoms of action, or whether there is a need to decide at all. Interventions must be weighed up against the circumstances of the case.

The MCA emphasises the importance of assessing an individual’s capacity concerning a specific decision. When it comes to assessing capacity, The Supreme Court supports the ‘two-stage functional test of capacity’ approach, which consists of the following.

1. Is the person able to make a decision? – This may be with support if required.
2. If they can’t, is there a disturbance or impairment in the functioning of their brain?
3. Is the person’s inability to make a decision due to the disturbance or impairment?

If someone is determined as unable to make a relevant decision if they aren’t able to:

• Understand the information they are given
• Retain the information long enough to make a decision
• Use the information available to make a decision
• Communicate their decision e.g. by talking, using sign language or simple movements like squeezing a hand or blinking their eyes

The balance of probabilities will be used to determine someone’s capacity. To remain compliant, the Mental Capacity Act states that your records must be able to show why you’ve come to your conclusion that a person lacks mental capacity for a particular decision.

Deprivation of Liberty Safeguards, or DoLS, is a legal framework introduced in 2009 that has been designed to protect people who are unable to consent to the arrangements for their care due to a lack of capacity. DoLS often come into play when someone who lacks capacity is under constant supervision or control in a care home or hospital, and they aren’t free to leave. When such care amounts to a ‘deprivation of liberty,’ the arrangements put in place are independently assessed to ensure the best interests of the individual are put first.

Acid Test DoLS

The Acid Test is where a person who can’t consent to arrangements is:

·       Under continuous supervision and control – This can be staff awareness or knowledge of where a person is or what they’re doing. It doesn’t mean someone has to be in line-of-sight 24/7, nor do they require support on a 1-1 basis.

·       Not free to leave – The person doesn’t have to be objecting, they can be very happy and settled into their environment. However, just because they are behaving this way and aren’t trying to leave, it doesn’t mean that they aren’t deprived of their liberty. For example, if they did try to leave, someone would try to stop them.

Under these circumstances, they are likely to be deprived of their liberty, whether they are objecting or not. It can be difficult to define some of the very important terminology that helps us to understand whether someone is likely to be deprived of their liberty, which is why we have defined the above.

The DoLS Assessment is in place to make sure that the care given to incapacitated people is in their best interest. There are six parts to this assessment:

• Age – Must be 18+ years old
• Mental health – Must have a ‘mental disorder’
• Mental capacity – Must lack the capacity to make their own decisions
• Best interests – If deprivation of liberty is taking place, it must be in their best interest
• Eligibility – The person can’t be liable to detention under the Mental Health Act 1993
• No refusals – Authorisation can’t contradict or conflict advanced decisions of the individual

An assessment will determine whether the deprivation of liberty is or is not allowed to happen. If the assessment decides that it can be implemented, it will be classed as ‘authorisation.’ If someone who lacks capacity is in a care home or hospital, a DoLS assessment will take place if it’s felt they are being, or eventually will be, deprived of their liberty. A different system will be required if someone who needs to be assessed is living in their own home or supported living.

To help you understand more about DoLS, how you can ensure compliance with the regulations and what your DoLS system should look like, please see our Guide to DoLS: What You Need to Know.

The Liberty Protection Safeguards or LPS will eventually replace DoLS. In the past, DoLS has been criticised for being too complicated and overly bureaucratic. Due to the reduced threshold for identifying deprivation of liberty, a drastic increase in the number of referrals was seen. This case, known as the ‘Cheshire West’ case, was taken to the Supreme Court in 2014. So, what is the difference Between LPS and DoLS? The government is hoping that LPS will solve certain challenges by:

• Creating a new simplified legal framework that’s clear and accessible to all of those affected.
• Delivering better outcomes for those deprived of their liberty, alongside family/unpaid workers.
• Providing a streamlined authorisation process that’s able to operate effectively in all settings.
• Ensuring the MCA works as intended, by making sure that people’s decisions are heard while staying compliant with Articles 5 and 8 of the European Convention on Human Rights.
• Providing an inclusive, balanced and lawful mechanism by which deprivations of liberty can be authorised for young people aged 16 and 17, not just those aged 18 or over.
• Ensuring increased compliance with the law, improving care and treatment for incapacitated people and providing a cost-effective system of authorisation.
• Being able to apply the above to people in supported accommodation, shared accommodation and their own homes, not just people in care homes and hospitals.
• Having the option to transfer deprivation of liberty to more institutions, so people can access a wider range of settings which provide more comprehensive consideration of their lives.
• Ditching the term ‘managing authority’ as these services will need to be aware of LPS requirements.
• Not needing to renew the evidence of a mental disorder at every authorisation, unless personal circumstances have changed.
• Allowing authorisations to last for a maximum of one year for the first authorisation and renewal, some can be up to three years providing the renewals are continuous and there are no changes (or expected changes) in that time.
• Replacing a supervisory body with a responsible body e.g. NHS hospitals will be the responsible body for managing the process for their patients. ICBs or Local Health Boards will become the responsible body for managing the process for people mainly taken care of by them. Finally, local authorities will be the responsible body for everyone else e.g. people in care, supported accommodation, their own homes, etc.

While the above lists what will be changing and how LPS differs from DoLS in some areas, here is what will stay the same:

• The Supreme Court decision – ‘Cheshire West’ DoLS criteria will remain.
• Those who draw on care and support need to be as involved in the process as much as they can, and practicable.
• Best-interest decisions for incapacitated people will still be required and the best-interest checklist must continue to be followed.
• For LPS to be used, a person must be determined to be unable to make a decision about their care or residence and that they can’t consent to their care arrangements.
• Medical evidence of a mental disorder must be provided (as defined in the Mental Health Act).
• LPS won’t be able to be used under elements of the Mental Health Act e.g. where a person is detained under Section 2 or 3 of the Act.
• A requirement for a relevant consultation with relevant people to have taken place.
• Formal written authorisation is required to enable someone to be lawfully deprived of their liberty of the purpose of receiving treatment or care.
• The authorisation can be challenged by the person in the Court of Protection.
• Authorisation will only provide authority for the health or social care provider to deprive a person of their liberty, however, it does not require them to do so.
• While deprived of their liberty, the person will still have access to someone to support them.

Finally, are there any existing elements of the legislation that will be reinforced by LPS? Well, where possible and by the ‘Responsible Body,’ LPS should be authorised in advance. This was something that was expected by DoLS, but the practice didn’t fulfil the requirement. Another reinforced element is to involve the person in the process, there will be clearer and more explicit requirements. The new legislation will also have an explicit requirement to consult with others. While this has always been implied through the link to the best interest process of the MCA, the LPS has now laid these out more clearly. To finish, the person will have access to an ‘appropriate person’ much earlier in the process.

As you can see, the MCA, DoLS and LPS play a pivotal role in safeguarding the rights and well-being of vulnerable individuals. Care providers must understand legislation surrounding these elements, adhere to these standards diligently, and prioritise the best interests of those in their care. When it comes to changes within the care sector, being prepared is the key to success, so what can you and your care service do to prepare for LPS?

Reduce the time needed to review documentation by having good-quality mental capacity assessments. Having good-quality best-interest decision-making and appropriate recording will also reduce the work needed when it comes to evidencing and authorising LPS. And most importantly, make sure all of your staff is aware of the definition of deprivation of liberty, the threshold set by the Supreme Court in 2014 and the concept of restrictions and restraint as it applies within the MCA.

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