A statutory framework for people who lack capacity to make decisions for themselves
The Mental Capacity Act requires us to assume that people have capacity and can make decisions themselves, unless otherwise established. A person will be given all possible help to make specific decisions before being assessed as lacking capacity to make their own decisions.
If we think a person may lack capacity to make a decision, even after being offered practical support, a social worker or other suitably qualified person will carry out a capacity assessment in relation to the specific decision to be made. Where it has been assessed that a person lacks capacity for a particular decision, decisions will be made in their best interest.
Any restrictions because of this decision will be in the person’s best interest and will be proportionate to the likelihood of the person suffering harm as a result of the decision.
Planning will always continue to involve the person as far as possible, taking account of their wishes, feelings, values and aspirations as well as their needs and wellbeing. They may be supported and represented by family and friends. If this is not possible, an independent advocate will be appointed. The advocate will represent the person, speak for them and challenge the local authority’s decision if necessary.
The Deprivation of Liberty Safeguards came into force on 1 April 2009. They provide protection for vulnerable people who are accommodated in hospitals or care homes in circumstances that amount to a deprivation of their liberty and who lack the capacity to consent to the care or treatment they need. The safeguards do not apply to people detained under the Mental Health Act 1983.
Deprivation of Liberty Safeguards, Code of Practice
Mental Capacity Act 2005 Deprivation of Liberty Safeguards and you (Easy to read version)
SCIE Mental Capacity Act (MCA) resource
A7 Keeping safe
A8 Safeguarding adults
Guidance note: Best interests decision making, deprivation of liberty and using the Court of Protection
Understanding You forms
N1 Assessment of mental capacity
N2 Best interests decision
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