1. Working with Adults who Cannot Make Decisions Themselves

When working with an adult who lacks mental capacity, it is important to be clear about who the decision maker is.

When practitioners are supporting an adult who lacks the mental capacity to make decisions regarding health and welfare or property and finance, it is important to find out if there is a ‘lasting power of attorney’ (LPA) or ‘deputyship’ in place. The Office of the Public Guardian (OPG) can provide information on whether a person has an LPA, enduring power of attorney or court appointed deputy (see Find Someone’s Attorney, Deputy or Guardian).

An LPA is a legal document that enables a donor (that is the person who wants to have the LPA) to select an attorney (the person the donor has chosen) to act on their behalf in relation to two types of decisions: 1) health and welfare and / or 2) property and finance. A donor can have a number of attorneys and replacement attorneys (these are attorneys who will step into the role of attorney if the current named attorney/s can no longer act). When there are a number of attorneys, the donor needs to choose if they will act ‘jointly’ (which means all attorneys need to make a decision together), or ‘jointly and severally’ (which means attorneys can make decisions together or separately) for specific decisions.

For health and welfare matters, the donor must lack the mental capacity to make the decision in question before the attorney/s can take over this role (this can be different for property and finance (see Section 1.1). The reason someone may lack mental capacity is usually either because of a lifelong disability that affects their cognition, such as a severe learning disability or a progressive condition such as dementia. However, it is important to remember that just because someone has an impairment of, or a disturbance in the functioning of the mind or brain it does not automatically mean that they cannot make a decision. A mental capacity assessment will need to be carried out to evidence why the person cannot make a particular decision. The mental capacity assessment will look at the person’s diagnosis, how they present and how this is impacting them (causative nexus).  For more information, see Metal Capacity chapter.

There are two options for LPAs: property and finance or health and welfare. The donor can apply for both or just one.

1.1 Property and finance

Property and finance cover matters such as selling a property, paying bills, withdrawing money, paying care fees, accessing bank accounts and investments, pensions and benefits.

When a person has mental capacity, they can legally appoint someone as their attorney with LPA for property and finance. A difference between property and finance and health and welfare LPAs is that for property and welfare, the donor can select that they are happy for the attorney to act on their behalf even while they have the mental capacity. Alternatively, the donor can set up the LPA so that the attorney can only act on their behalf if they lack mental capacity. The donor also has the option to set instructions on what the attorney can and cannot do. This means it is important that practitioners check the specific details in the LPA document whenever they are working with someone who has an LPA.

1.2 Health and welfare

Health and welfare covers, for example, decisions around medical care, care needs, moving into a care home or staying at home and how support needs will be met (see also Lasting Power of Attorney: Acting as an Attorney: Health and Welfare Attorneys (gov.uk).

Health and welfare LPAs only become valid when the donor lacks mental capacity to make the specific decision for themself. When completing the application, the donor has the option of selecting if they also want the person they appoint as attorney to make decisions about life-sustaining treatment on their behalf. It is important to remember that life-sustaining treatment can also cover things such as antibiotics due to having pneumonia or being put on a ventilator.

When healthcare or social care staff are involved in preparing a care plan for someone who has appointed a health and welfare attorney, they must first assess whether the donor has the mental capacity to agree to the care plan or parts of it. If the donor lacks mental capacity, practitioners must consult the attorney and seek their agreement to the care plan. They will also need to consult the attorney when considering what action is in the person’s best interests.

In practice, if the person is paying for their own care, there may be more choice about, for example, the choice of a care home than if the local authority or NHS is paying. If the local authority or trust is paying, the person choosing the home should still have a choice of care home. However, the list will be limited to the homes that the local authority or trust will fund. In either situation, the legal decision-maker is the attorney acting in accordance with the LPA.

2. What Happens when an Adult Lacks Mental Capacity – Can someone be Appointed as their LPA?

No, at the time of applying for LPA the donor must have mental capacity. If an adult lacks the mental capacity for this decision, the person wanting to act on their behalf would need to apply for a deputyship. Deputyship is put in place by the Court of Protection; the person wanting to be the deputy has to make the application to the court.

The application to the Court will include a mental capacity assessment (which will be completed by a medical professional or a social worker) to evidence that the person lacks the mental capacity to make decisions as to how to manage their property and finances or health and welfare. The Court will decide if the applicant can act on the person’s behalf. There are a few differences between deputyship and LPA, for example with health and welfare, the life-sustaining treatment option is not applied to deputies. This is due to this being such a significant decision the courts believe that this should be made following consultation with all those involved.

3. How to Check if there is Valid LPA in Place

The Office of the Public Guardian (OPG) holds the records of all registered and valid LPAs (this includes enduring power of attorney and deputyship).

If someone says they have LPA for property and finance and / or health and welfare, the practitioner must ask the attorney to provide the original document which has the OPG reference number. The information is in page 1 in Section 1: The donor; the registration date and reference number are at the bottom marked for ‘OPG office use only’.

If the paperwork is not available, the OPG can carry out a check to see if there is a valid the LPA. This can take some time, therefore if an urgent response is required (for example as part of a safeguarding enquiry), this can be requested online using a template. The OPG normally responds within 48 hours to urgent requests.

Alternatively, the donor or attorney named on the LPA can provide an LPA access code. Practitioners can use the code online to:

• view a summary of an LPA;
• check whether an LPA is valid;
• check who the attorneys are on an LPA.

See View a Lasting Power of Attorney (gov.uk) 

4. Other Types of Legal Authority that can Support the Adult when Making Certain Decisions

There are a number of other types of legal authority that can support adults when making particular decisions. These are:

• enduring power of attorney: This was in place before LPA was introduced in 2007. It only covered finance and property. Enduring power of attorney could only be registered when a person lacks mental capacity. This is no longer appointed and there are not many remaining in place;
• advance decision: This can only be used to refuse medical treatment. To be valid the person must be 18 or over, have the mental capacity to have made an advance decision, which is witnessed, and signed (and therefore is legally binding). Practitioners may come across advance decisions for finances and property; these should not be ignored but instead would need to be considered under ‘wishes and feelings’ (which is a formal term used as part of best interests decisions).
• best placed professional: If none of the above are in place, the most relevant professional becomes the decision maker for the specific decision in question, for example medical decisions would be the responsible doctor; care and support needs it would be the social worker; for managing finances it would be the social worker;
• Court of Protection: At times the decision may be made by the Court of Protection. This includes when a decision is in dispute, or it is an ‘excluded decision’, which a practitioner has no legal authority over, such as if the person lacking mental capacity wants to get married (see Mental Capacity chapter).

4.1 Other important considerations

Advance statement: This contains the person’s wishes and feelings for example how they want to be cared for, where they want to live etc. It is not legally binding, but the person’s views need to be considered and the decision will be heavily weighted by this.

Next of kin: The person’s next of kin has no legal decision-making authority to make decisions about the person. They would need to have LPA or a deputyship in place. However, practitioners still need to take into consideration their wishes and feelings.

5. Consulting with Others

The attorney has a duty to make decisions subject to the provisions of the Mental Capacity Act (MCA) 2005 (as amended) (including acting in accordance with the principles in section 1 of the MCA and the provisions relating to acting in the donor’s best interests in section 4 of the MCA) and to any specific conditions or restrictions imposed by the LPA.

When deciding what is in the donor’s best interests, attorneys should consider the donor’s past and present wishes and feelings, beliefs and values. Where practical and appropriate, they should also consult with:

• anyone involved in caring for the donor;
• close relatives and anyone else with an interest in their welfare;
• other attorneys appointed by the donor.

An attorney can only consent to or refuse life-sustaining treatment on behalf of the donor if, when making the LPA, the donor has specifically stated in the LPA document that they want the attorney to have this authority. As with all decisions, an attorney must act in the donor’s best interests when making decisions about such treatment. This will involve applying the best interests checklist and consulting with carers, family members and others interested in the donor’s welfare. In particular, the attorney must not be motivated in any way by the desire to bring about the donor’s death.  Anyone who has concerns that the attorney is not acting in the donor’s best interests can apply to the Court of Protection for a decision (see Best Interests chapter).

6. What if the LPA or Deputy Refuses to Make the Decision?

Attorneys have a duty not to delegate their decision-making responsibilities to others and must carry out their duties personally, unless authorised by the donor to delegate specific decision-making responsibilities. The attorney may seek professional or expert advice (for example, investment advice from a financial adviser or advice on medical treatment from a doctor). But they cannot, as a general rule, allow someone else to make a decision that they have been appointed to make, unless this has been specifically authorised by the donor in the LPA.

In certain circumstances, attorneys may have limited powers to delegate (for example, through necessity or unforeseen circumstances, or for specific tasks which the donor would not have expected the attorney to attend to personally). But attorneys cannot usually delegate any decisions that rely on their discretion.

Where an attorney refuses to comply with their responsibilities, application may need to be made to the Court of Protection for a decision to be made.

7. What if there are Concerns about the Attorney / Deputy

At times practitioners may have concerns with the LPA or deputy that is in place. This can include things such as the appointed person not acting in the person’s best interests, suspected financial abuse by the appointed person, the appointed person selling the individual’s property when this is not in their best interests, etc. If a practitioner has any concerns about an LPA or deputyship that is in place, it may be appropriate to first work with the attorney to come to a resolution, for example via mediation. However, the practitioner should contact their local safeguarding adults team if they are concerned the attorney is financially abusing or has harmed the donor. Where there are potential criminal offences, the police should be informed. The practitioner will also need to contact the OPG. The OPG can apply to the Court of Protection to remove an attorney if there are concerns about their behaviour.

8. Ending a Lasting Power of Attorney / Deputyship

The donor can end the LPA at any point as long as they have the mental capacity to make such a decision. The attorneys themselves can also remove themselves from the role. The attorney will be asked to return any legal documents to the OPG.

The attorney’s role will also be ended if the donor passes away, the attorney passes away or loses mental capacity and a replacement attorney was not named, or the donor did not state that they must act jointly if the donor’s marriage to the attorney ends and if the attorney of property and finance becomes bankrupt.

With some LPAs there may be a named replacement attorney who would be able to pick up this role if the current attorney is unable to act anymore.

9. Case Examples

9.1 Case example for an adult who self-funds their care and support

Mary has dementia and has been cared for at home with a package of care funded by the family. However, there have been several incidents that have led to Mary assaulting her husband meaning her needs can no longer be met at home. The husband holds an LPA for Property and Financial Affairs and Health and Welfare. The husband has requested a Care Act assessment and following a financial assessment, Mary has been assessed as self-funding her care. The husband has spoken to the social worker who has advised that a care home would be most suitable for Mary. The husband spoke to the GP and the district nurse about this decision as he wanted to seek their views. The social worker advised the husband that it was his decision to choose the care home and provided some information on care homes that were potentially suitable to meet his wife’s needs. As Mary was self-funding her care and LPA was in place, the decision maker was her husband. Her husband informed the social worker that his wife loved living in the countryside, and it would be important to her that the care home be somewhere quiet, with not too many residents, and had lots of space for his wife to wander the grounds.

The MCA is underpinned by five key principles. In line with these, the LPA or deputy must consult with others who are relevant to the decision being made and must act in the person’s best interests. In the example above, Mary’s husband has consulted with relevant professionals and has followed Mary’s views and wishes when it comes to finding a suitable placement for her.

If in this example, the local authority was funding the care and support, the person choosing the home on Mary’s behalf (her husband) should still have a choice of care home, but the choice will be limited to the homes that the local authority will fund. In either situation, the legal decision-maker remains the attorney (Mary’s husband) acting in accordance with the LPA.

9.2 Case example for an adult who needs medical treatment

Tom has a severe learning disability and has been admitted to hospital due to having eating and drinking difficulties. After further investigations, the consultant has recommended that Tom requires a PEG (percutaneous endoscopic gastrostomy). Tom’s parents try to refuse this treatment stating they have an LPA ‘for everything’ and that they want Tom to be able to eat ‘normally’ and not via a tube. However, upon the social worker submitting an urgent request with the OPG, the OPG confirm that Tom’s parents have LPA for property and finance only. Therefore, the decision maker will be the consultant.

If there is no LPA / deputy in place, the relevant practitioner is the decision maker, depending on the decision that needs to be made.

However, in such cases just because family are not the decision maker does not mean they do not have a voice. With any decision, the family’s views are important and hold weight towards the decision. If a unanimous decision cannot be reached, a court application may be required to make the decision.

9.3 Case example for an adult who is Continuing Health Care funded

Helen is fully health-funded and is currently in a nursing home that is closing down. The Continuing Health Care (CHC) nurse has checked their system which states there is no LPA / deputy in place. However, there is also no evidence of how this was checked. The CHC nurse ensures that they complete a check with the OPG who confirms there is no LPA / deputy in place. The nurse saves this email confirmation to the person’s record. The CHC nurse is the decision maker regarding the move to a new placement, they ensure they speak to all involved in the person’s care to gain their views including family. All interested parties agree one of the placements is in Helen’s best interests to move to.

With CHC cases it is important to make sure they are funding 100% of the care, if a split funding agreement is in place, then the local authority is the decision maker.

 10. Further Reading

Find out if Someone has a Registered Attorney or Deputy (Office of the Public Guardian) 

Urgent Enquiries: Check if Someone has an Attorney or Deputy (Office of the Public Guardian) 

View Lasting Power of Attorney (gov.uk) 

Use a Lasting Power of Attorney Service (Office of the Public Guardian) 

Using a Lasting Power of Attorney (gov.uk) 

LPAs – the Duties on the Certificate Provider (Mental Capacity Law and Policy) 

Best Interests Decision-Making for Adults who Lack Capacity: A Toolkit for Doctors Working in England and Wales (BMA) 

Mental Capacity Code of Practice (Office of the Public Guardian) 

1. Introduction

The Mental Health Act (MHA) is the current law which provides legal powers for the admission, detention and treatment of a person against their will in respect of mental illness. Where a person is detained against their will this is commonly known as ‘being sectioned’.

The Act is an extensive legislative framework about which this chapter provides an introduction and basic details of the most commonly known and used sections within the adult social care remit.

The Mental Health Act 1983 was reformed in 2007 which saw a number of key changes to the original Act which placed a larger focus on public protection and risk management. See Appendix 1: 2007 Amendments to the 1983 Act, for information about changes to the original legislation.

2. Who does the Mental Health Act 1983 apply to?

The MHA provides ways of assessing, treating and caring for people who have a serious mental disorder that puts them or other people at risk. It sets out when:

• people with mental disorders can be detained in hospital for assessment or treatment;
• people who are detained can be given treatment for their mental disorder without their consent (it also sets out the safeguards people must get in this situation); and
• people with mental disorders can be made subject to guardianship or after-care, under supervision to protect them or other people.

Most of the MHA does not distinguish between people who have the mental capacity to make decisions and those who do not. Many people covered by the MHA have the capacity to make decisions for themselves.

Decision makers will need to decide whether to use either the MHA or MCA to meet the needs of people with mental health problems who lack capacity to make decisions about their own treatment. Where someone with a mental health disorder is subject to a Community Treatment Order (CTO) or Guardianship under the MHA, and lacks capacity, they may have a Deprivation of Liberty Safeguards in place; otherwise a person cannot be subject to the two frameworks at the same time.

3. Parts of the Act

The Mental Health Act 1983 is split into ten parts:

1. The Application of the Act
2. Compulsory Admission to Hospital and Guardianship
3. Patients Concerned in Criminal Proceedings or Under Sentence
4. Consent to Treatment
5. Treatment of Community Patients not Recalled to Hospital
6. Mental Health Review Tribunals
7. Removal and Return of Patients Within the United Kingdom
8. Management of Property and Affairs of Patients
9. Miscellaneous Functions of Local Authorities and Secretary of State
10. Offences
11. Miscellaneous and Supplementary

The Mental Health Act 1983 was reformed in 2007 when a number of key amendments were made placing a greater focus on public protection and risk management. See Appendix 1: 2007 Amendments to the 1983 Act.

These parts are the ones most commonly used and key to adult social care practice:

• Compulsory Admission to Hospital and Guardianship;
• Miscellaneous Functions of Local Authorities and Secretary of State;
• Miscellaneous and Supplementary.

4. Part 2: Compulsory Admission to Hospital and Guardianship

4.1. Section 2 Admission for Assessment

Allows for:

• a person to be detained in hospital for assessment of their mental health;
• treatment to be forcibly administered as part of the assessment period (excluding use of Electro-Convulsive Therapy (ECT);
• a detention period of up to 28 days, however discharge can be arranged sooner.

Section 2 cannot be renewed. If further detention is required beyond the 28 day period, assessment under section 3 should be considered. In certain cases where there may be issues relating to a person’s nearest relative, Section 2 can be extended by the powers of the Court until such decision regarding the nearest relative are resolved.

4.1.1 Criteria

For a person to be detained under section 2 they must have:

• been assessed by two doctors – one of whom must be section 12 approved. It is preferable that at least one of the doctors involved in the assessment has previous acquaintance with the person being assessed;
• both doctors need to be of the opinion that compulsory admission is required and must complete a medical recommendation;
• there must be no longer than five clear days between each of the medical assessments, for example if an examination is completed on a Monday, the five days are not inclusive of this day (meaning Tuesday to Saturday are clear days therefore Sunday is the last possible day for the second medical examination);
• the Approved Mental Health Professional (AMHP) must be in agreement with the two doctors’ recommendations and have completed a valid application for admission;
• the AMHP must complete the application for admission within 14 days of the latter dated medical recommendation;
• a person’s nearest relative is also able to make an application for admission.

4.1.2 Appeal

Patients have the right to appeal against the detention within the first 14 days.

4.2 Section 3: Admission for treatment

For a person to be detained under section 3 the criteria for section 2 must all be met. Section 3 can be used where a person is well known to mental health services and it is clear what illness is to be treated and therefore no assessment period is required.

Alternatively, it may be used due to the need for continued detention after the 28 day period of section 2.

4.2.1 Provisions

The Act allows the following provisions:

• a person to be detained in hospital for treatment of their mental health. Appropriate medical treatment must be available;
• forcible administration of treatment (excluding use of ECT. Where there is non-compliance with medication this will need to be reviewed by a second opinion appointed doctor (SOAD) after three months.;
• a detention period of up to six months, after which it can be renewed for a further six months and on a 12 monthly basis thereafter.

4.2.2 Appeal

Patients have the right to appeal against the detention within the first six months.

4.3 Section 4 – Admission for Assessment in case of emergency

4.3.1 Criteria

Section 4 is used in emergency situations where is it deemed not practicable to arrange two doctors and assess under section 2.

Unlike assessment for sections 2 and 3 there needs only to be one doctor involved – preferably one whom previous acquaintance. An AMHP is still required to make an application.

4.3.2 Provisions

The Act allows the following provisions:

• detention period of up to 72 hours following which further assessment by a second doctor should be arranged and the decision made whether to detain under section 2 or to arrange discharge;
• treatment can be refused, however where there is concern regarding capacity to consent, treatment can be provided in the best interests of the individual detained. It can also be provided where it is necessary to prevent harm to themselves or to others.

4.3.3 Appeal

There is no right of appeal against section 4.

4.4 Section 5: Application in respect of a patient already in hospital (holding powers)

The Act:

• provides powers to doctors and nurses to prevent a person from leaving hospital where by doing so there may be a risk posed to the individual themselves or to others as a result of the individuals mental health;
• may be used to prevent informal patients from leaving a mental health ward or prevent a person from leaving a general ward where they may be receiving treatment for a physical condition.

There are two parts to section 5:

4.4.1 Section 5 (2)

This is often referred to as doctors’ holding powers. The provisions are:

• it gives the doctor in charge of the individuals the power to detain for up to 72 hours;
• further assessment by an AMHP and second doctor should be arranged as soon as possible and the decision made whether to detain under a section of the M HA or to arrange discharge;
• section 5 (2) cannot be renewed.

4.4.2 Section 5 (4)

This is often referred to as nurse’s holding powers. The provisions are:

• it gives certain nurses the power to detain for up to six hours;
• a doctor should be requested to attend as soon as possible;
• section 5(4) ends when the doctor arrives. The doctor must assess if the person can be transferred onto section 5(2) or whether the person can remain on an informal basis;
• section 5(4) cannot be renewed.

4.5 Section 7: Application of Guardianship Order

Guardianship gives someone (usually a local authority social care department) the exclusive right to decide where a person should live. However in doing so they cannot unlawfully deprive the person of their liberty. Where restrictions amount to a deprivation, authorities should seek to apply for a DoLS authorisation to run concurrent with the Guardianship Order (see Deprivation of Liberty Safeguards).

The guardian can also require the person to attend for treatment, work, training or education at specific times and places, and they can demand that a doctor, approved mental health professional or another relevant person have access to the person wherever they live.

Guardianship can apply whether or not the person has the capacity to make decisions about care and treatment.

It does not give anyone the right to treat the person without their permission or to consent to treatment on their behalf.

4.6 Section 17: Leave of absence from hospital

The Act makes the following provisions:

• the Responsible Clinician (RC) to grant a detained patient leave of absence from hospital;
• leave can be provided as escorted or unescorted and the time allowed is controlled by the RC;
• leave can be used to allow a person to have home leave including overnight stays and can often be useful to trial how a person is likely to function in the community when discharged from hospital.

A person is still a detained patient when section 17 is in place.

4.7 Section 17A: Community Treatment Orders

Community Treatment Orders (CTO’s) are used to support people in the community that have mental health needs and require continued treatment under supervision.

The aim of the community treatment or was to reduce the number of ‘revolving door’ patients who would typically become non-compliant with treatment once discharged from hospital, and as a result experience deterioration in their mental state often resulting in further admission.

The provisions are:

• CTO’s can only be used where a person is detained under section 3, 37, 45A, 47 or 48;
• a CTO allows for conditions to be attached to a person’s discharge;
• any individual considered for a CTO should have a degree of understanding in relation to the conditions attached as they must comply with these conditions in order to avoid recall to hospital;
• CTO timeframes mirror those of Section 3, that is six months, six months, annual;
• an AMHP needs to be in agreement with the proposal of a CTO before it can be enforced.

4.8 Section 26: Nearest Relative

The MHA provides safeguards to those who are detained, one of these being the role of the nearest relative (NR).

The NR is different from next of kin and is identified using following:

• husband, wife or civil partner;
• son or daughter;
• father or mother;
• brother or sister;
• grandparent;
• grandchild;
• uncle or aunt;
• niece or nephew.

Determining a person’s NR can be complex, however to simplify it whoever appears first in the list defaults to the role.

The NR must be over 18, and where there are both parties available, for example mother and father, the eldest would fulfil the role.

The NR has the right to request that a MHA assessment is completed; they are able to make an application for detention and can also request that their relative is discharged from hospital.

An identified NR can be displaced by the courts if it is deemed that they are unsuitable. The NR is also able to delegate the role and function.

5. Part 9: Miscellaneous Functions of Local Authorities and the Secretary of State

5.1 Section 117 Aftercare – Introduction

Section 117 of the Mental Health Act 1983 (2007) imposes a duty upon local authorities and Integrated Care Boards (ICBs) to provide aftercare services for anybody who has been detained under Sections 3, 37, 45A, 47 or 48 of the Mental Health Act (MHA). This includes patients granted leave of absence under section 17 and patients being discharged on community treatment orders (CTOs). The Care Act 2014 implemented some changes to the MHA.

As Section 117 enforces a duty on the local health authority and adult social care services to provide care to meet eligible needs, Section 117 needs that arise directly because of or from the person’s mental disorder and are likely to prevent a deterioration in their condition and therefore lead to a readmission. If a person has additional social care needs, such as a physical disability, that do not arise because of a mental disorder, the usual social care eligibility criteria under the Care and Support Statutory Guidance would need to be applied to these needs.

If, at any point, it becomes apparent that a person who is be eligible for Section 117 aftercare has been paying for services, they can reclaim these payments as long as with clear evidence is provided of their detention.

6. Part 11: Miscellaneous and Supplementary

6.1 Section 135 – Warrant to search and remove to a place of safety

6.1.1 Section 135 (1)

The provisions are:

• professionals have the power of entry to a person’s private dwelling for the purpose of assessment under the MHA;
• for entry to be gained by force if required under the powers of a warrant issued by the county court;
• for a person to be removed to a place of safety for the purpose of assessment or where appropriate, remain in their own home.
• An AMHP, a police officer and a doctor is required to be present for the execution of a 135 (1) warrant.

6.1.2 Section 135 (2)

The provisions are:

• for forcible entry if required to access a person who is liable to be detained under the MHA or who need to be retaken to hospital (for example if they have gone absent without leave from the ward when detained and have returned home and refusing to allow entry);
• a warrant is again required to act out these powers of entry, however an AMHP or doctor is not required to execute the warrant under this section.

6.1.3 Section 136 – Removal of Mentally Disordered Persons Without a Warrant – Police Powers of detention

The provisions are:

• section 136 is an emergency power which allows police officers to remove a person from a public place to a place of safety for the purpose of further assessment under the MHA where there are concerns that a person may be suffering from mental illness and in need of immediate care and / or control. The timeframes of section 136 were reduced from 72 to 24 hours in December 2017;
• if a person is initially seen by a doctor before the AMHP has coordinated a full assessment and it is deemed that there is no evidence of mental illness, the person must be discharged from the 136 immediately;
• a person can be discharged with or without follow up from services once assessed or may be detained under the MHA.

Appendix 1: 2007 Amendments to the Mental Health Act 1983

The key amendments to the Act were as follows.

The Fundamental Principles – Section 118 of the Act says that the Code of Practice (which was given legal stature as part of the reform) must provide a statement of principles to inform all decision making within the remit of the mental health act.

Chapter 1 of the Code of Practice for England outlines the following guiding principles:

• purpose principle;
• least restriction principle;
• respect principle;
• participation principle;
• effectiveness, efficiency and equity principle.

Section 1: Definition of mental disorder – The definition of mental disorder in Section 1 of the Act was split into 4 classifications; psychopathic disorder, mental illness, mental impairment and severe mental impairment.

The 2007 Act broadened the term of mental disorder:

“mental disorder” means any disorder or disability of the mind.

Prior to the changes to the Act there were grounds to detain those with Learning Disability under mental impairment and severe mental impairment. The amendment now makes clear that the disability itself does not meet the criteria for detention unless it is:

“associated with abnormally aggressive or seriously irresponsible conduct on his part”

Professional roles – The role of the Approved Social Worker (ASW) was opened up to healthcare professionals including nurses, occupational therapists and psychologists. It was renamed the Approved Mental Health Professional (AMHP).

The role of the Responsible Medical Officer (RMO) became that of the Responsible Clinician (RC).

Supervised Discharge /Community treatment Orders – Section 25A Supervised Discharge of the 1983 Act was abolished other than for those already subject to it and was replaced with the introduction of section 17A Community Treatment Orders (CTO’s).

Introduction of Appropriate Medical Treatment – The 1983 Act stated that treatment had to be likely to be effective upon a person’s condition which allowed for a greater degree of detentions to take place, whereas the Act now concurs that treatment is only to be provided where there is purpose outlining that the purpose of any treatment is to:

“alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations” (section 145).

The definition of medical treatment was also changed itself to outline that medical treatment can be provided in the absence of medical supervision.

Those of 16 and 17 years of age and Parental Responsibility – The 2007 Act introduced the notion that any person aged 16 or 17 who is deemed to have capacity cannot be detained on basis of parental consent – outlined in section 131 MHA.

Appendix 2: The Policing and Crime Act 2017

Further to the 2007 Amendments to the MHA 1983, the introduction of the Policing and Crime Act 2017 has more recently had an impact on the application of the Act:

• section 136 powers can be exercised anywhere other than in a private dwelling;
• it is unlawful to use a police station as a place of safety for anyone under the age of 18 in any circumstances;
• a police station can only be used as a place of safety for adults in specific circumstances, which are set out in regulations;
• the maximum detention is 24 hours (unless a doctor certifies that an extension of up to 12 hours is necessary);
• before exercising a section 136 power police officers must, where practicable, consult one of the health professionals listed in section 136(1C), or in regulations made under that provision;
• a person subject to section 135 or 136 can be kept at, as well as removed to, a place of safety. Therefore, where a section 135 warrant has been executed, a person may be kept at their home (if it is a place of safety) for the purposes of an assessment rather than being removed to another place of safety;
• police officers can search persons subject to section 135 or 136 powers for protective purposes.

1. Introduction

Mental health and mental wellbeing can have different meanings to each individual. If a person feels well they have good mental health they will be able to cope well with day to day life, make the most of their potential and partake fully in social, family, community and work related activity.

When a person does not feel that they are in a state of good mental health, it can affect their daily activity and their perception on life, so daily life, work and socialising with family, friends, colleagues and the wider community becomes difficult.

2. Mental Health Act 1983

In legal terms, the Mental Health Act 1983 (amended 2007) does not use the expression mental health, but refers to mental disorder.

2.1 Amendments to the Act

The amendments of the MHA in 2007 simplified the previous criteria and outlined mental disorder to be ‘any disorder or disability of the mind’.

Whist mental disorder is now classified as such, a diagnosis of a learning disability does not count for detention or treatment under the Act unless it is ‘associated with abnormally aggressive or seriously irresponsible conduct.’

People with a learning disability are considered under the MHA only if they exhibit behaviour that is ‘abnormally aggressive or seriously irresponsible’. A person cannot be detained under the Act purely as a result of their learning disability alone.

Amendments to the Act also mean that people with personality disorders who used not to be detainable under the Act (because their disorders did not result in ‘abnormally aggressive or seriously irresponsible conduct on the part of the person concerned’) can now be detained.

There is still an exclusion that relates to a dependence on drink or drugs which means a person cannot be detained under the MHA 1983 solely for such a dependency, but they can be detained if it arises because of or from a mental disorder.

Chapter 2 of the Code of Practice to the MHA 1983 (2007) explains in further detail what illnesses may be considered under the Act and also references personality disorders and the MHA.

1. Introduction

If a person has been assessed as lacking capacity, any action taken or any decision made or on behalf of that person, must be made in their best interests. This is the fourth principle of the five principles of the Mental Capacity Act 2005 (MCA) (see Mental Capacity chapter).

The person who has to make the decision is known as the ‘decision maker’. The decision maker is usually the person closest to the decision, that is a clinician for healthcare decisions, social worker for social care decisions and a carer for day to day care decisions.

2. What are ‘Best Interests’?

The law requires a number of factors to be considered when deciding what is in the best interests of a person who lacks capacity. The checklist below details these factors. This list is not exhaustive and the MCA Code of Practice should be referred to for more details.

• It is important not to make assumptions about someone’s best interests merely on the basis of their age, appearance, condition or any aspect of their behaviour.
• The decision maker must consider all the relevant circumstances relating to the decision in question.
• The decision maker must consider whether the person is likely to regain capacity (for example after receiving medical treatment). If they are likely to, can the decision or act wait until then?
• The decision maker must involve the person as fully as possible in the decision that is being made on their behalf.
• If the decision concerns the provision or withdrawal of life sustaining treatment, the decision maker must not be motivated by a desire to bring about the person’s death.

The decision maker must in particular consider:

• the person’s past and present wishes and feelings (in particular if these have been written down);
• any beliefs and values of the person (for example religious, cultural or moral) that would be likely to influence the decision in question and any other relevant factors.

As far as possible, the decision maker must consult other people if it is appropriate to do so and take into account their views as to what would be in the best interests of the person wo lacks mental capacity, especially:

• anyone previously named by the person lacking capacity as someone to be consulted;
• carers, close relatives or close friends or anyone else interested in the person’s welfare;
• any attorney appointed under a Lasting Power of Attorney (LPA);
• any deputy appointed by the Court of Protection to make decisions for the person;
• the Independent Mental Capacity Advocate (IMCA), if appointed (see Independent Mental Capacity Advocates and Independent Mental Health Advocates chapter).

The decision maker must take the above steps, amongst others, and weigh up the above factors when deciding what decision or course of action is in the person’s best interests.

For decisions about serious medical treatment or certain changes of accommodation and where there is no one who fits into any of the above categories, the decision maker may need to instruct an IMCA.

3. Where there is a Dispute about Best Interests

Family and friends may not always agree about what is in the best interests of an individual. Case records should record any details of disputes, must clearly demonstrate that decisions have been based on all available evidence and have taken into account all the conflicting views. If there is a dispute, the following courses of action can help in determining what is in a person’s best interests:

• involve an advocate who is independent of all the parties involved;
• get a second opinion;
• hold a formal or informal case conference;
• go to mediation;
• as a last resort, an application could be made to the Court of Protection for a ruling.

4. Recording

Comprehensive recording is key in all cases, but particularly in safeguarding adults cases which are likely to be the most complex and present the highest levels of risk. In such cases, full records of best interest decision making should be kept, including:

• how the decision about the person’s best interests was reached;
• the reasons for reaching the decision;
• who was consulted to help decide the best interests;
• what particular factors were taken into account;
• if written requests from person concerned were not followed, why not;
• the content and results of any disputes;
• what has been decided in the person’s best interests and reasons for that decision.

People lacking mental capacity have the same rights as those with capacity to have their outcomes realised. Although it may be challenging, a good best interests decision reflects the wishes, feelings, values and needs of the person.

1. Deprivation of Liberty

A deprivation of liberty can occur in any care setting and is when a person has their freedom limited in some way.

Schedule 1, Part 1, Section 5(4) of the Human Rights Act, 1998, states that ‘everyone who is deprived of his [their] liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his [their] detention shall be decided speedily by a court and his [their] release ordered if the detention is not lawful’.

In England and Wales, the Deprivation of Liberty Safeguards (DoLS) are used to check that actions which limit the liberty of a person who does not have the capacity to consent to this, are done in the least restrictive way necessary to keep them safe and that it is in their best interests.

DoLS provides a process for a deprivation of liberty to be made legal through either ‘standard’ or ‘urgent’ authorisation processes. These processes are designed to prevent the making of arbitrary decisions to deprive a person of liberty. They also give people a right to challenge deprivation of liberty authorisations.

2. Identifying Deprivation of Liberty

In 2014, a ruling by the Supreme Court (P v Cheshire West and Chester Council and P&Q v Surrey County Council, March 2014 P v Cheshire West and Chester Council and P&Q v Surrey County Council, March 2014) held that, as well as hospitals and registered care homes, a deprivation of liberty can also occur in domestic / home type settings where the state is responsible for enforcing such arrangements. This may include a placement in a supported living arrangement in the community and in a person’s own home. Where a deprivation of liberty occurs outside of a hospital or registered care home, it must be authorised by the Court of Protection. See Section 11, Deprivation of Liberty outside a Hospital or Registered Care Home Setting.

It is crucial that all care providers can recognise when a person might be deprived of their liberty by applying the acid test (see Section 3, The Acid Test) and then take the required action by applying for an authorisation to the supervisory body / Court of Protection. This extends to all hospitals and registered care homes, domiciliary care providers, and day services.

Associated health and social care professionals must also be able to identify a potential deprivation of liberty, and know how to notify the supervisory body of deprivation of liberty which may be unauthorised.

3. The Acid Test

In its 2014 ruling, the Supreme Court clarified that there is a deprivation of liberty where the person:

• is under continuous supervision and control (all 3 of these aspects are required);
• is not free to leave;
• lacks capacity to consent to these arrangements; and
• their confinement is the responsibility of the State.

This means that if a person who lacks capacity to consent to this is subject to continuous supervision and control and are is free to leave they are deprived of their liberty.

The following factors are not relevant to determining if there is a deprivation of liberty:

• the person’s compliance or lack of objection;
• the reason or purpose behind a particular placement; and
• the extent to which it enables them to live a relatively normal life for someone with their level of disability.

See also Deprivation of Liberty Safeguards: At a Glance (SCIE) 

4. Restrictions and Restraint

There is a difference between a deprivation of liberty (which is unlawful, unless authorised) and restrictions on a person’s freedom of movement.

Restrictions of movement (if in accordance with the principles and guidance in the Mental Capacity Act 2005 (MCA)) can be lawfully carried out in a person’s best interests, in order to prevent harm. This includes use of physical restraint where that is proportionate to the risk of harm to the person and in line with best practice.

Examples of restraint and restrictions include:

• using locks or keypads to prevent a person leaving a specific area;
• administration of certain medication, for example to calm a person;
• requiring a person to be supervised when outside;
• restricting contact with family and friends, including if they could harm the person;
• physical intervention to stop someone from doing something which could harm themselves;
• removing items from a person which could harm them;
• holding a person so they can be given care or treatment;
• using bedrails, wheelchair straps, and splints;
• requiring close supervision / monitoring in the home;
• the person having to stay somewhere they do not want;
• the person having to stay somewhere their family does not want.

5. The Deprivation of Liberty Safeguards Process

5.1 Making an application for a standard authorisation

There are several stages involved in authorising a deprivation of liberty.  It is the local authority’s legal duty, as the supervisory body, to ensure that where a person is being deprived of their liberty in a hospital or a registered care home, or a deprivation of liberty is being proposed, that steps are taken to safeguard them. This only applies to people where they are ‘ordinarily resident’. The supervisory body organises and oversees the entire process for authorising a deprivation of liberty  that occurs in a registered care home or hospital. (See Ordinary Residence chapter for more guidance on deciding ordinary residence where this is unclear).

Annex 1 in the DoLS Code of Practice provides an overview of the legal process that begins when an application for a standard authorisation is received.

As a first step, the managing authority (the hospital or registered care home) must fill out a Form 1 Deprivation of Liberty Safeguards: Resources – GOV.UK (www.gov.uk) requesting a standard authorisation. This should be sent to the supervisory body (the local authority), who will then decide whether the person meets the necessary requirements for a standard authorisation to be granted or not granted.

5.2 Managing authority granting an urgent authorisation

The managing authority must decide whether an urgent authorisation should be issued in addition to their application for a standard authorisation (this is their responsibility) or whether just a standard authorisation is needed.

An urgent authorisation enables the managing authority to lawfully deprive the relevant person of their liberty for a maximum of seven days where certain criteria are met. This can be extended by the Supervisory Body for a further seven days, but only if certain criteria are met (see Deprivation of Liberty Safeguards: Resources. DHSC).

When issuing an urgent authorisation, the managing authority must reasonably believe a standard authorisation would be granted.

Before granting an urgent authorisation, the managing authority should try to speak to the family, friends and carers of the person and inform the person managing the person’s care. Information they provide may assist in preventing the adult being deprived of their liberty. Efforts to contact family and friends and any discussions had with them should be documented in the adult’s case records and on the urgent authorisation. The managing authority also need to ensure that they provide up to date contact information of friends / family / carers / advocates / allocated worker and other professionals on the Form 1 when they make the referral or grant themselves an urgent authorisation.

6. The Assessment Process

Before the supervisory body can grant an authorisation for a deprivation of liberty, the following assessments will be completed:

• mental health assessment: to confirm whether the person has an impairment / disturbance in the mind or brain;
• eligibility assessment: to confirm the person’s existing or potential status under the Mental Health Act, and whether it would conflict with a DoLS authorisation (this would normally be in a hospital setting).
• mental capacity assessment: carried out by either the mental health or best interest assessor to determine the person’s capacity to validly consent to their current care arrangements;
• best interests assessment: confirms whether deprivation of liberty is occurring, whether it could be avoided, and whether it is in the person’s best interests. The assessment will also recommend, how long the authorisation should last and who should act as a person’s representative throughout the period of authorisation;
• age assessment: to confirm the person is at least 18 years of age for DoLS. If a person is between the ages of 16 and 18 years of age, application needs to be made to the Court of Protection if they need to be deprived of their liberty;
• no refusals assessment: to confirm whether there is any valid advance decision which would conflict with the authorisation, or a person with a valid and registered Lasting Power of Attorney with authority over welfare decisions.

The assessments must be completed by specially trained professionals.

An Independent Mental Capacity Advocate (IMCA) may also be appointed during the assessment process if required if the person does not have any family / friends or other non-professionals involved (see Independent Mental Capacity Advocates and Independent Mental Health Advocates chapter).

7. Granting, or not Granting, a Standard Authorisation

If any of the requirements in Section 6, The Assessment Process are not met, deprivation of liberty cannot be lawfully granted. This may mean the registered care home or hospital must change its care plan to remove the restrictions and restraints causing the deprivation of liberty.

If all requirements are fulfilled, the supervisory body must grant the deprivation of liberty authorisation, for up to a maximum of one year. The supervisory body must inform the adult, those consulted, and the managing authority in writing.

The restrictions should cease as soon as the adult no longer requires them; they do not have to be in place for the full period of the authorisation.

At the end of the authorisation period, if it is believed the adult still needs to be deprived of their liberty, the managing authority must request another authorisation.

8. Conditions and Recommendations

The best interests assessor can recommend certain conditions are applied to the standard authorisation. The supervisory body are responsible for issuing the recommended conditions if they agree with them or can issue ones of their own on the authorisation, which must be fulfilled by the managing authority.

It is ultimately the supervisory body’s responsibility that any conditions attached to a DoLS authorisation are complied with. The supervisory body should also send a monitoring form to the registered care home or hospital where a person is deprived of their liberty for them to feedback about conditions.

The best interests assessor or supervisory body can also give recommendations to the local authority or organisation managing a person’s care relating to the deprivation of liberty.

9. Appointing a Relevant Person’s Representative

Everyone who is subject to a deprivation of liberty standard authorisation will be appointed a Relevant Person’s Representative (RPR). They must maintain frequent face to face contact with the person, and represent and support them in all related matters, including requesting a review or applying to the Court of Protection to present a challenge to a DoLS authorisation.

If there is no family member, friend, or informal carer suitable to be the person’s representative, the DoLS office will appoint a paid representative. Their name should be recorded in the person’s health and social care records.

The RPR has the right to request the advice and support of a qualified IMCA (see Independent Mental Capacity Advocate and Independent Mental Health Advocate chapter).

In Re KT & others, which was heard before the Court of Protection, Mr Justice Charles approved the use of general visitors to act as Rule 3A (now Rule 1.2) Representatives when there is no one else – such as family members or advocates – available to act for the person who is the subject of the proceedings. General visitors are commissioned by the Court of Protection to visit the person and others involved in the case, and report back their findings. Appointing a general visitor safeguards the rights of the person in the proceedings.

It is also the responsibility of the Representative or Paid Representative to ensure that any conditions attached to a DoLS authorisation are complied with and report this back to the Court.

10. Reviewing the Standard Authorisation

This is also known as Part 8 DoLS Review. The registered care home / hospital (managing authority) must monitor and review the adult’s care needs on a regular basis and report any change in need or circumstances that would affect the deprivation of liberty authorisation or any attached conditions. The home / hospital must request a DoLS review if:

• the adult (who is the ‘relevant person’) no longer meets any qualifying requirements;
• the reasons they meet the qualifying requirements have changed;
• it would be appropriate to add, amend or delete a condition placed on the authorisation due to a change in the adult’s situation;
• the adult or their representative has requested a DoLS review, which they are entitled to do at any time.

The supervisory body where necessary, will arrange for assessors to carry out a review of an authorisation when statutory conditions are met. Statutory DoLS reviews do not replace other health or social care reviews.

A review of the DoLS requirements and or conditions can be undertaken, if necessary, at any time during an authorisation period.

10.1 Where the person ‘objects’ to being deprived of their liberty in a hospital or registered care home

Paragraph 4.45 of the DoLS Code of Practice highlights that ‘if the proposed authorisation relates to deprivation of liberty in a hospital wholly or partly for the treatment of a mental disorder, then the person (also known as the relevant person) will not be eligible for a deprivation of liberty if:

• they object to being admitted to hospital, or to some or all the treatment they will receive there for mental disorder; and
• they meet the criteria for an application for admission under section 2 or section 3 of the Mental Health Act 1983 (unless an attorney or deputy, acting within their powers, had consented to the things to which the person is objecting).

A judgement by Mr Justice Baker Royal Courts of Justice February 2015 ruled that in all cases where a person lacks capacity, a DoLS assessment has been completed and the person objects to their placement, a referral must be made to the Court of Protection under S.21A .

This referral would often be made by the Relevant Person’s Representative (RPR) (see Section 9,  Appointing a Relevant Person’s Representative) but if this does not happen the local authority should take action to make the referral themselves.

Practice lessons from the judgement include:

• plan in advance: care should be taken to ensure that a DoLS assessment is completed prior to the move of the relevant person into residential accommodation. There should be very few exceptions to this rule. DoLS assessments should be completed in the case of ‘respite’ care if it is likely that this will become permanent either prior to the placement or with urgency after the placement is started;
• RPR – conflict of interest: care should be taken that the person appointed as the RPR is willing to make a referral to the Court of Protection if the relevant person objects to their placement. This may be difficult if the RPR is a family member who has a personal interest in the placement of the relevant person. In this case a paid representative should be appointed;
• local authority duty (supervisory body): the local authority has a duty to check that the RPR meets all the criteria and, if not, to take action to rectify this. They should make resources available to support IMCAs;
• challenge to placement: where the relevant person is challenging their placement, action should be taken speedily to refer to Court of Protection.

Click here to view the judgement: AJ (Deprivation of Liberty Safeguards). 

11. Deprivation of Liberty outside a Hospital or Registered Care Home Setting

This is also known as deprivation of liberty in a domestic setting.

Applications to authorise a deprivation of liberty in the community are made to the Court of Protection (contact the local authority’s legal department for more details). In most cases the authorisation is a paper-based application that should not require a court hearing.

As a practitioner you will also need to ascertain whether the person who has a care package at home or in supported living, may be deprived of their liberty by way of their care plan – that is, do they meet the ‘acid test’ as described in Section 3, The Acid Test?

• If, after consideration, the person meets the ‘acid test’, you will need to make the application for a deprivation of liberty which can only be authorised by the Court of Protection.
• Let your manager know that you are working with a person who may be deprived of their liberty. This is important as all referrals to the Court of Protection need to be sent via the relevant legal team and there is a cost involved.
• Follow the relevant guide from your legal department to make a deprivation of liberty application as soon as possible.
• It is possible for more than one application to be made to the Court of Protection at a time and the court is currently able to accept numerous applications at the same time.
• It is important that a person who has a Deprivation of Liberty authorisation in the community also has a Representative (COP Rule 1.2 part 3a); this person is appointed by the Court.

Court of Protection Hub Case Summaries – Court of Protection Hub

12. Alerting to Unlawful Deprivation of Liberty

If a person (professional or otherwise) suspects a person is being deprived of their liberty under the acid test (see Section 3, The Acid Test) and it has not been authorised, they should first discuss it with the registered care home/ hospital ward manager, domiciliary care or supported living manager.

If the manager agrees the care plan involves deprivation of liberty, they should be encouraged to make a request for authorisation. Everyone should be satisfied the care plan contains the least restrictive option available to keep the person safe, and that it is in the person’s best interest.

If the manager does not agree to make a request for a DoLS authorisation, the concerned person should approach the local authority or Court of Protection to discuss the situation and report the potential unlawful deprivation.

13. Consequences of an Unlawful Deprivation of Liberty

If an organisation breaches a person’s human rights (Articles 5 & 8) by unlawfully depriving them of their liberty, it could result in legal action being taken, including a court declaration that the organisation has acted unlawfully and breached the adult’s human rights. This could lead to a claim for compensation, negative press attention and remedial action taken by commissioners and regulators.

14. Patients Receiving Life Sustaining Treatment

See Intensive Care Society and the Faculty of Intensive Care Medicine Guidance on MCA / DoL

The judgement in R (Ferreira) v HM Senior Coroner for Inner South London held that patients in intensive care  are not necessarily deprived of their liberty as per the acid test in Cheshire West, as the facts in the two cases differ. The effect of this judgement is that even if a patient receiving ‘life sustaining treatment’ (S.4b MCA) appears to be deprived of their liberty, they will not be said to be so if the primary condition they are being treated for is a physical condition even if there is an underlying mental disorder and they are an inpatient in intensive care.

“There is in general no need in the case of physical illness for a person of unsound mind to have the benefit of safeguards against deprivation of liberty where the treatment is given in good faith and is materially the same treatment as would be given to a person of sound mind with the same physical illness.” (Judge Lady Justice Arden)

The Judge also held however that there may be some circumstances where a deprivation of liberty arises and needs to be authorised. In NHS Trust & Ors v FG [2015] for example, a hospital sought authorisation to deprive a pregnant woman of her liberty. The order prevented her from leaving the delivery suite and authorised invasive medical treatment such as a caesarean section.

Any treatment, therefore, for a primary condition which is a physical condition will not constitute a deprivation of liberty where the same treatment would be given to a patient who had capacity.

15. Guidance on Covert Medications and DoLS

Covert medication is an interference with an individual’s right to a private life (Article 8). It is also likely to contribute to someone being deprived of their liberty (Article 5). The decision to covertly medicate should therefore always be subject to close scrutiny, particularly if that medication will affect an individual’s behaviour, mental health or act as a sedative. It is essential that any covert medication is administered in the least restrictive way possible and that safeguards are in place, for example, regular reviews of the decision to covertly medicate and whether it remains the least restrictive option in that particular patient’s case.

The steps that should be followed are as follows:

• if an individual lacks capacity, is refusing to take the medication and is unable to understand the risks to their health if they fail to take the medication, then, in exceptional circumstances, covert medication can be considered;
• prior to medication being administered covertly, a best interests meeting should be held with the relevant healthcare professionals, Relevant Person’s Representative (RPR) (if appointed) and family members;
• if there is no agreement, there should be an immediate application to Court;
• if it is agreed by everyone that covert administration of medication is in the individuals best interests, then this must be recorded and placed in their medical and/or care home records;
• the existence of the covert medication must be clearly identified within the best interests assessment and DOLS authorisation;
• an agreed management plan must be adopted allowing for the decision to covertly medicate and the corresponding care and support plan to be reviewed;
• the management plan should specify the timeframes (possibly monthly, where the standard authorisation is longer than six months) and circumstances (such as change of medication or treatment regime) which would trigger a review;
• these reviews should involve the relevant healthcare professionals, RPR (if appointed) and family members;
• all of this information must be easily accessible when reviewing any of the individual’s records.

Each case is fact specific. However, where covert medication was anticipated prior to the best interests’ assessment, it would be inappropriate for standard authorisation to be for the maximum period of authorisation.

This reinforces the NICE guidelines on Covert Medication Administration. It emphasises that, while covert medication may, on the face of it, appear not to be a particularly restrictive option, it may still be a breach of an individual’s rights if the appropriate safeguards are not adopted.

It is therefore essential that where covert medication is used in an individual’s treatment, it is always the least restrictive option and there are checks in place to ensure that this decision is regularly reviewed.

1. Introduction

The Independent Mental Capacity Advocate (IMCA) was introduced by the Mental Capacity Act 2005 (MCA). The Act gives some people who lack capacity a right to receive support from an IMCA.

The local authority has a duty to make sure that IMCAs are available to represent people who lack capacity to make specific decisions, so staff will need to know when an IMCA must be involved (see Mental Capacity).

IMCAs are independent and generally work for advocacy providers who are not part of a local authority or the NHS.

2. Eligibility

2.1 Independent Mental Capacity Advocates

The majority of adults who access the IMCA service are people with learning disabilities, older people with dementia, people who have an acquired brain injury or people with mental health problems and / or are affected by drug or alcohol use.

IMCAs also act when people have a temporary lack of capacity because they are unconscious or barely conscious whether due to an accident, being under anaesthetic or as a result of other conditions.

A person’s capacity may vary over time or may depend on the type of decision that needs to be made.

Many adults have significant barriers to communication and are unable to instruct the advocate themselves. In addition, many people using the service will be unable to express a view about the proposed decision.

The IMCA service is provided for any person aged 16 years or older, who has no one able to support and represent them, and who lacks capacity to make a decision about either:

• a long-term care move;
• serious medical treatment;
• safeguarding adult procedures; or
• a care and support plan review.

Such a person will have a condition that is affecting their ability to make decisions.

IMCAs should be available to people who are in prison, in hostels or homeless and who lack capacity to make decisions about serious medical treatment or long term accommodation.

Many people who qualify for advocacy under the Care Act 2014 will also qualify for advocacy under the MCA. The same advocate can provide support as an advocate under the Care Act and under the MCA. This is to enable the person to receive seamless advocacy so that they don’t have to repeat their story. Whichever legislation the advocate is acting under, they should meet the appropriate requirements for an advocate under that legislation.

Both the Care Act and the MCA recognise the same areas of difficulty, and both require a person with these difficulties to be supported and represented, either by family or friends, or by an independent advocate or  independent mental capacity advocate in order to communicate their views, wishes and feelings.

2.2 Independent Mental Health Advocates

Under the Mental Health Act 1983 (MHA) people, known as ‘qualifying patients’, are entitled to the help and support from an Independent Mental Health Advocate (IMHA).

Independent advocacy under the duty flowing from the Care Act is similar in many ways to independent advocacy under the MCA. Regulations have been designed to enable independent advocates to be able to carry out both roles. For both:

• the advocate’s role is to support and represent people;
• the advocate’s role is primarily to work with people who do not have anyone appropriate to support and represent them;
• the advocates require a similar skill set;
• regulations about the appointment and training of advocates are similar;
• local authorities are under a duty to consider representations made by both independent advocates and IMCA;
• advocates will need to be well known and accessible;
• advocates may challenge local authority decisions;
• people who qualify for an IMCA in relation to the care planning and care review – as that planning may result in an eligible change of accommodation decision – will (in nearly all cases) also qualify for independent advocacy under the Care Act. The provisions of the Care Act are however wider and apply to care planning irrespective of whether it may result in a change of accommodation decision. People for whom there is a power to instruct an IMCA in relation to care review will (in nearly all cases) also qualify for independent advocacy under the Care Act. The Care Act however creates a duty rather than a power in relation to advocacy and care reviews.

3. The Care Act and the Mental Capacity Act

3.1 Advocacy duties under the Care Act

The duty to provide independent advocacy is to provide support to:

• people who have capacity but who have substantial difficulty in being involved in the care and support ‘processes’;
• people in relation to their assessment and / or care and support planning regardless of whether a change of accommodation is being considered for the person;
• people in relation to the review of a care and / or support plan;
• people in relation to safeguarding processes (though IMCAs may be involved if the authority has exercised its discretionary power under the MCA and appointed an IMCA if protective measures are being proposed for a person who lacks capacity, at the time to make the relevant decisions or understand their consequences);
• carers who have substantial difficulty in engaging, whether or not they have capacity;
• people for whom there is someone who is appropriate to consult for the purpose of best interests decisions under the Mental Capacity Act, but who is not able and / or willing to facilitate the person’s involvement in the local authority process;
• adults who are subject to a safeguarding enquiry or safeguarding adult review

3.2 Care Act and Mental Capacity Act

A person may be entitled to an advocate under the Care Act and then, as the process continues it may be identified that there is a duty to provide an advocate (IMCA) under the MCA. This will occur for example when during the process of assessment or care and support planning it is identified that a decision needs to be taken about the person’s long term accommodation. It would be unhelpful to the individual and to the local authority for a new advocate to be appointed at that stage.

It would be better that the advocate who is appointed in the first instance is qualified to act under the MCA (as IMCAs) and the Care Act and that the commissioning arrangements enable this to occur.

4. Role of the IMCA

The IMCA should go to meetings on the adult’s behalf and examine proposed decisions to make sure that:

• all options have been considered;
• where the adult’s own preferences and dislikes can be identified, these are taken into account;
• no particular agendas are being pursued; and
• the person’s civil, human and welfare rights are being respected.

The IMCA is not best interests advocacy. The IMCA should not offer their own opinion or make the decision.

They should be experienced at working with people who have difficulties with communication. They should always attempt to get to know the adult’s preferred method of communication and spends time finding out if a person is able to express a view and how they communicate.

5. Safeguarding Adult Cases and Care and Support Plan Reviews

When people meet the IMCA criteria, the local authority and the NHS have a duty to instruct an IMCA for changes in accommodation and serious medical treatment decisions.

For safeguarding adult cases and care and support plan reviews, the local authority and the NHS have powers to appoint an IMCA where they consider the appointment would be of particular benefit to the person concerned.

Local authorities in England should have a policy on how IMCAs will be involved in care and support plan reviews and safeguarding adult procedures.

The local authority and the NHS have powers to instruct an IMCA to support and represent a person who lacks capacity where:

• it is alleged the person is or has been abused or neglected by another person; or
• it is alleged the person is abusing or has abused another person

A responsible body can instruct an IMCA to support and represent a person who lacks capacity when:

• they have arranged accommodation for that person;
• they aim to review the arrangements (as part of a care plan or otherwise); or
• there are no family or friends whom it would be appropriate to consult.

6. Referrals and the Referral Process

Any adult who meets the following criteria must be referred to the IMCA service.

• Is a decision being made about serious medical treatment or a change of accommodation; or a care and support plan review or safeguarding adult procedures?
• Does the person lack capacity to make this particular decision?
• Is the person over 16 years old?
• Is there nobody (other than paid staff providing care or professionals) whom the decision maker considers willing and able to be consulted about the decision? (This does not apply to safeguarding adult cases.)

NHS bodies must instruct and take into account information from an IMCA where decisions are proposed about serious medical treatment, where the person lacks capacity to make the decision and there are no family or friends who are willing and able to support the person.

Serious medical treatment involves:

• giving new treatment;
• stopping treatment that has already started; or
• withholding treatment that could be offered; and where there is either:
  1. a fine balance between the benefits and the burdens and risks of a single treatment;
  2. choice of treatments which are finely balanced; or
  3. what is proposed would be likely to involve serious consequences.

A person has a right to an IMCA if such treatment is being contemplated on their behalf and the person has been assessed as lacking capacity to make the decision for themselves at that time.

An IMCA cannot be involved if the proposed treatment is for a mental disorder and that treatment is authorised under Part 1V of the Mental Health Act 1983. However, if a person is being treated under the MHA and the proposed treatment is for a physical illness, for example, cancer, an IMCA can be involved

Local authority and NHS staff must be able to identify when a person has a right to an IMCA and know how to instruct an IMCA.

Firstly, they should know which organisation has been commissioned to provide an IMCA service in the local authority. Local arrangements will be in place with each IMCA service provider regarding the ways in which referrals can be made.

At the time when the referral is made it must be evident that:

• a person lacks the capacity to make the particular decision;
• the decision is either serious medical treatment; a change in accommodation, a care review or an adult protection case; and
• there is nobody who can appropriately support and represent the person (this does not apply to safeguarding adults).

7. When an IMCA cannot be involved

An IMCA cannot be involved if:

• a person has capacity;
• the proposed serious medical treatment is authorised under the MHA and is therefore for a mental disorder rather than a physical condition;
• the proposed long term change in accommodation is a requirement under the MHA;
• there is no identifiable decision about a long term change in accommodation or serious medical treatment or decisions relating to a care and support plan review or safeguarding adult procedures;
• there is any other person (not in a paid capacity) who is willing and able to support and represent appropriately the person who lacks capacity; or
• decisions are being made in relation to a person’s finances, unless there are safeguarding adult procedures in which an IMCA is involved.

The IMCA will stop being involved in a case once the decision has been finalised and they are aware that the proposed action has been carried out. They will not be able to provide ongoing advocacy support to the person. If it is felt that a person needs advocacy support after the IMCA has withdrawn, it may be necessary to make a referral to a local advocacy organisation (see Independent Advocacy).

8. Person requiring an IMCA is Receiving Funding from outside the Area where they are currently Living

Each IMCA service covers a local authority area and all eligible people in that area, whether on a permanent or temporary basis, must be referred to the local IMCA service.

1. Introduction

The Mental Capacity Act 2005 (MCA) provides a statutory framework to empower and protect people who may lack mental capacity to make decisions for themselves, and establishes a framework for making decisions on their behalf. This applies whether the decisions are life changing events or everyday matters.

Whenever the term ‘a person who lacks capacity’ is used, it means a person who lacks mental capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken. This reflects the fact that people may lack mental capacity to make some decisions for themselves, but will have mental capacity to make other decisions. For example, they may have mental capacity to make small decisions about everyday issues such as what to wear or what to eat, but lack mental capacity to make more complex decisions about financial matters.

It also reflects the fact that a person who lacks mental capacity to make a decision for themselves at a certain time may be able to make that decision at a later date. This may be because they have an illness or condition that means their capacity changes. Alternatively, it may be because, at the time the decision needs to be made, they are unconscious or barely conscious (for example because of an accident or being under anaesthetic or that their ability to make a decision may be affected by the influence of alcohol or drugs).

Finally, it reflects the fact that while some people may always lack mental capacity to make some types of decisions – for example, due to a condition or severe learning disability that has affected them from birth – others may learn new skills that enable them to gain capacity and make decisions for themselves’ (Mental Capacity Act: Code of Practice).

The MCA legislates in relation to:

• allowing adults to make as many decisions as they can for themselves;
• enabling adults to make advance decisions about whether they would like future medical treatment;
• allowing adults to appoint, in advance of losing mental capacity, another person to make decisions about health and welfare or finance and property on their behalf at a future date;
• allowing decisions concerning health and welfare or property and finance to be made in the best interests of adults when they have not made any future plans and cannot make a decision at the time;
• ensuring an NHS body or local authority appoints an independent mental capacity advocate to support a person who cannot make a decision about serious medical treatment, or about hospital, care home or residential accommodation, when there are no family or friends who can be consulted (see Independent Mental Capacity Advocates and Independent Mental Health Advocates chapter);
• providing protection against legal responsibility for carers who have honestly and reasonably seek to act in the person’s best interests;
• providing clarity and safeguards around research in relation to those who lack capacity.

All decisions taken in the adult safeguarding process must comply with the MCA. It is always important to establish the mental capacity of an adult who is at risk of abuse or neglect, should there be concerns over their ability to give informed consent to:

• planned interventions and decisions about their safety;
• their safeguarding plan and how risks are to be managed to prevent future harm.

The MCA relates to people over the age of 16 years old. However, these SAB policies and procedures apply only to adults over the age of 18 years.

2. Principles of the Mental Capacity Act

Under the MCA, the following five principles apply:

1. It must be assumed that a person has mental capacity to make their own decisions, unless they have been assessed as lacking mental capacity.
2. A person should not be treated as unable to make a decision unless all practical steps to help them do so have been taken without success.
3. A person should not be treated as unable to make a decision just because they make a decision that seems to others to be unwise or bad.
4. An act done or decision made on behalf of a person who lacks mental capacity must be done, or made, in their best interests.
5. Before an act is done, or a decision is made, staff must consider whether its intended purpose can be achieved in a way that is less restrictive of the person’s rights and freedom of action.

These five principles should inform all actions when working with a person who may lack or have reduced mental capacity and should be evidenced when making decisions on their behalf.

3. Assessing Capacity

It must always be assumed that an adult has the mental capacity to make their own decisions unless it is established that they lack the capacity to do so. This means that anybody who claims an adult lacks mental capacity should be able to provide evidence in support of this.

They need to demonstrate, on the balance of probabilities, that the adult lacks the mental capacity to make a particular decision, at the time it needs to be made. This means being able to demonstrate it is more likely than not that the person lacks capacity to make the decision in question.

3.1 Two Stage Test

To help assess if a person lacks mental capacity, the MCA sets out a two stage test:

Stage 1: The Functional Test – can the adult make the decision in question?

This test looks at whether the adult is able to make the required decision.

Practical and appropriate support should be provided to help the adult make the decision for themselves if required.

An adult is considered unable to make a decision if they cannot:

1. understand information about the decision to be made (known as the ‘relevant information’);
2. keep that information in their mind;
3. use or weigh up that information as part of the decision making process; or
4. communicate their decision (by talking, using sign language or any other means).

There only needs to be evidence in one of these areas, not all of them.

If the adult cannot make the decision in question – even with support – Stage 2 must then be considered.

Stage 2: The Diagnostic Test – is the adult unable to make the decision because of an impairment of, or a disturbance in, the functioning of their mind or brain?

This requires evidence to show the person has an impairment or disturbance of the mind or brain. Examples include:

• conditions associated with some types of mental illness;
• dementia;
• significant learning disabilities;
• the long-term effects of brain damage;
• physical or medical conditions that cause confusion, drowsiness or loss of consciousness;
• delirium;
• concussion following a head injury; and
• symptoms of alcohol or drug use.

If a person does not have such an impairment or disturbance of the mind or brain, they will not lack mental capacity under the MCA.

Once the adult has been identified as having an impairment or disturbance in the functioning of the mind or brain, it is important to check that their inability to make the decision is because of this impairment. This is known as the ‘causative nexus’ (PC and NC v City of York Council [2013] EWCA Civ 478). Only where it can be reasonably said that the person cannot make the decision because of the impairment of their mind, can it be said that they lack mental capacity to make the decision.

4. Safeguarding and Mental Capacity

During a safeguarding enquiry, important decisions will have to be made throughout the process. It is therefore vital that – where an adult does not have mental capacity – decisions made or action taken on their behalf are in their best interests.

An assessment of an adult’s mental capacity should be considered in all safeguarding cases where:

• there is a formal diagnosis of cognitive impairment;
• a neuro-psychological assessment testing suggests they have cognitive impairment;
• concerns about the person’s mental capacity that have been raised by others;
• there are discrepancies in the person’s own evaluation of their abilities;
• there is collateral evidence suggesting a change in their personality;
• they fail to learn from their mistakes;
• they repeatedly make risky or unwise decisions.

5. Recording

The two stage test should be used as a framework for recording the assessment of mental capacity, so that the evidence for decision making is clear.

Recording needs to be clear and, where possible, extracts taken from conversations practitioners have had with the adult, to evidence the outcome.

6. Making Decisions on behalf of Someone who Lacks Mental Capacity

If, having taken all practical steps to support the adult to make their own decision, it is decided that a decision should be made for them, that decision must then be made in their best interests (See Section 8, Best Interests)

It is important to also consider whether there is another way of making the decision which might not affect the person’s rights and freedom of action as much (known as the ‘least restrictive alternative’ principle).

See also Promoting Less Restrictive Practice: Reducing Restrictions Tool for Practitioners (ADASS and LGA) 

6.1 Decision makers

Different people can make decisions or act on behalf of someone who lacks mental capacity. The person making the decision is known as the ‘decision maker’, and it is their responsibility to decide what would be in the best interests of the person who lacks mental capacity.

For most day to day actions or decisions, the decision maker will be the carer most directly involved with the person at the time.

Where the decision involves the provision of medical treatment, the professional proposing the treatment is the decision maker.

Where nursing or paid care is provided, the nurse or paid carer will be the decision maker.

In safeguarding cases, the practitioner who is undertaking the enquiry will be the decision maker for decisions relating to the safeguarding process.

In some cases, the same person may make different types of decision for someone who lacks mental capacity. For example, a carer may carry out certain acts in caring for the person on a daily basis, but if they are also an attorney, appointed under a Lasting Power of Attorney (LPA), they may also make specific decisions concerning the person’s property and financial affairs or health and welfare.

A decision may also, at times, be made jointly by a number of people. For example, when a care plan for a person who lacks capacity is being developed, different health or social care staff might be involved in making decisions or recommendations about their care package. Alternatively, the decision may be made by one practitioner within the team. A different member of the team may then implement that decision, based on what the team has ascertained to be the person’s best interests. Practitioners need to ensure that someone is representing the adult, such as an independent mental capacity advocate (IMCA) or a relevant person’s representative (RPR).

All best interests decisions under the MCA should be made by consensus.  If the parties cannot agree then steps should be taken to resolve the disagreement, e.g. re-assessing the person’s needs.  If agreement cannot be reached then any public bodies involved will need to consider whether to apply to the Court of Protection.

6.2 Lasting powers of attorney, court appointed deputy and the Office of the Public Guardian

A lasting power of attorney (LPA) allows an adult to appoint someone who will act on their behalf if they lose mental capacity in the future. LPAs are registered with the Office of the Public Guardian (OPG).

A court appointed aeputy is appointed by the Court of Protection. Depending on the terms of their appointment, deputies can take decisions on welfare, healthcare and financial matters as authorised by the Court of Protection but they are not able to refuse consent to life sustaining treatment. Deputies are only appointed if the Court cannot make a one off decision to resolve the issues. The OPG supervises deputies appointed by the Court and provides information to help the Court make decisions.

Attorneys and deputies are legal representatives. They can be a member of the person’s family or a friend; it does not have to be a legal professional.

6.3 Independent mental capacity advocates

See also Independent Mental Capacity Advocates and Independent Mental Health Advocates chapter.

Independent mental capacity advocates (IMCA) are appointed to support a person who lacks mental capacity and has no one to speak for them. IMCAs have to be involved where decisions are being made about serious medical treatment or a change in the adult’s accommodation where it is provided, or arranged, by the NHS or a local authority. The IMCA represents the person’s wishes, feelings, beliefs and values, and brings all relevant factors to the attention of the decision maker. IMCA services are provided by organisations that are independent of the NHS and local authorities.

6.4 Forward planning

Considering the possibility of losing mental capacity and registering Lasting Power of Attorneys is usually associated with people getting older, but it can be useful for adults of any age to think about making use of such provisions, in case of unexpected illnesses or accidents for example, that results in a temporary or permanent loss of mental capacity.

Using an LPA is not limited to circumstances where an adult’s mental capacity is reduced. For example, if a person (the donor) has an illness which means they can’t leave the house, has registered an LPA in relation to property and financial affairs, the attorney can carry out financial transactions on their behalf and with their permission.

Although an LPA cannot be used until it has been fully registered with the OPG and confirmation received, they can be registered before the adult loses mental capacity, which means that they could be used immediately if required.

7. Best Interests

See also Best Interests chapter.

The MCA sets out a checklist of things to consider when deciding when making decisions in a person’s best interests. When making best interests decisions, practitioners should:

• not make assumptions about an adult based on age, appearance, condition or behaviour;
• consider all the relevant circumstances;
• consider whether the person has (or will have) mental capacity to make the decision;
• support the person’s participation in any acts or decisions made for them;
• not make decisions about life sustaining treatment which are motivated by a desire to bring about the person’s death;
• consider the person’s expressed wishes and feelings, beliefs and values;
• take into account the views of others with an interest in the person’s welfare, their carers and those appointed to act on their behalf.

8. Excluded Decisions

There are certain decisions which can never be made on behalf of a person who lacks mental capacity. This is because they are either so personal to the individual concerned, or they are governed by other legislation.

8.1 Decisions concerning family relationships

Nothing in the MCA allows a decision to be made on someone else’s behalf in relation to:

• consenting to marriage or a civil partnership;
• consenting to have sexual relations;
• consenting to a decree of divorce on the basis of two years’ separation;
• consenting to the dissolution of a civil partnership;
• consenting to a child being placed for adoption or the making of an adoption order;
• discharging parental responsibility for a child in matters not relating to the child’s property;
• contact with others, including restricting the use of social media, telephone calls and who can visit the adult; or
• giving consent under the Human Fertilisation and Embryology Act 1990.

• media, telephone calls and who can visit the adult.

All these types of decisions should be referred to the Court of Protection if the person is believed to lack mental capacity to make these decisions themselves.

8.2 Mental Health Act matters

Where a person who lacks mental capacity to consent is currently detained and being treated under the Mental Health Act 1983, nothing in the MCA authorises anyone to:

• give the person treatment for mental disorder; or
• consent to them being given treatment for mental disorder.

8.3 Voting rights

Nothing allows a decision on voting – at an election for any public office or at a referendum – to be made on behalf of a person who lacks capacity to vote.

8.4 Unlawful killing or assisting suicide

Nothing in the MCA affects the law relating to murder, manslaughter or assisting suicide.