The Mental Capacity Act 2005

8.1    The individual must be the primary source of information relating to identifying the desired outcomes and risks associated with achieving these. They must, therefore, be supported to provide this information during the assessment and support planning stage. 

8.2    Establishing a person’s mental capacity is crucial to understanding how someone needs to be supported and a positive approach is a constant theme of the Mental Capacity Act, as indicated by the following principles: 

• A person must be assumed to have capacity to make decisions unless proven otherwise 
  
• Individuals have a right to be supported in making their own decisions before anyone concludes that they cannot 
  
• Individuals with mental capacity must retain the right to make decisions that might appear eccentric or unwise to others 
  
• Anything done for or on behalf of people without capacity must be in their best interests 
  
• Anything done for or on behalf of people without capacity should be the least restrictive option 

8.3    A practitioner’s first priority is to maximise a person’s decision making capacity, by taking all practicable steps to support the person to make the decision for themselves. Any assessment of capacity must therefore be carried out at the place and time of the person’s highest level of functioning and be relevant to the specific issue/decision. 

8.4    The Mental Capacity Assessment & Best Interests FACE form (MCA2) should be used to document significant decision mental capacity assessments

8.5    Where people do not have the mental capacity to consent to a specific decision at the relevant time when the decision needs to be made, practitioners have a duty under the Mental Capacity Act 2005 to carry out an assessment of mental capacity & act in the individuals best interests when deciding what support to provide. If the person has family, friends or advocates (and consideration should be given to instructing an IMCA if the individual is otherwise unsupported) the practitioner must consult them or and any professional involved, before reaching a best interests decision. They may also have to carry out risk assessments. 

Where a person has a court appointed Lasting Power of Attorney or Court of Protection Welfare Deputy that person is the decision maker. 
 
Where the decision-maker is not specifically court appointed, the final decision(s) must be made using the statutory framework for best interest decisions under the MCA. 

8.6    The Deprivation of Liberty Safeguards (DoLS) applies to people who lack capacity specifically to consent to treatment or care in a hospital or care home, under public or private arrangements. Where a decision by a care home or hospital is likely to deprive someone of his/ her liberty, the care home or practitioner must refer to the relevant Supervisory Body so that a series of 6 assessments, including a Best Interests Assessment, can be carried out in accordance with procedures.

Deprivation of liberty safeguards (DoLS) policy | Safeguarding Adults in Gloucestershire

8.7    Based on that assessment the Best Interests Assessor (BIA) will recommend that any action to restrict a person’s liberty must be carried out in the least restrictive way. The Supervisory Body will authorise the deprivation of liberty for the shortest time possible, taking on the recommendation of the BIA and providing the person meets all other qualifying assessments. 

8.8    As an authorisation under DoLS can only apply to a person in a hospital or care home, an application must be made to the Court of Protection if deprivation of liberty takes place elsewhere. Apart from the authorisation of the deprivation of liberty under DoLS as set out above, deprivation is prohibited unless the Court has made an order concerning the person’s welfare, or where it is authorised for life sustaining or other emergency treatment. 

8.9    It is the responsibility of the practitioner (and where they have not been trained to practice as a Best Interest Assessor - the BIA) to ensure that the directorate’s Deprivation of Liberty Safeguards Policy is operated fairly and equitably. 

Deprivation of liberty safeguards (DoLS) policy | Safeguarding Adults in Gloucestershire

8.10    The DH publication “Nothing ventured, nothing gained” provides guidance on best practice in assessing, managing and enabling risk for people living with dementia. It is based on evidence and person-centred practice and within the context of “Living well with dementia; a national dementia strategy” and Putting People First. The guidance is aimed at commissioners and providers in health and care across all sectors.