The underlying philosophy of the Act is to ensure that any decision made, or action taken, on behalf of someone who lacks the capacity to make the decision or act for themselves is made in their best interests.
Mental capacity and deprivation of liberty
During the 2000s, in
addition to the changes to the Mental Health Act 1983 to form the Mental Health
Act Amendment Act 2007, there were two other pieces of legislation of key
importance to both mental health and LD: the Mental Capacity Act and the
Deprivation of Liberty Safeguards. Both have an impact on the authority to give
medicines.
The Mental Capacity
Act 2005, covering England and Wales, provides a statutory framework for people
who lack the capacity to make decisions, or who have capacity and want to make
preparations for a time when they may lack capacity in the future. It sets out
who can take decisions, in which situations and how they should go about this.
The underlying
philosophy of the Act is to ensure that any decision made, or action taken, on
behalf of someone who lacks the capacity to make the decision or act for
themselves is made in their best interests.
The five statutory
principles of the Act are:
·
A person must be assumed to have capacity unless it is
established that they lack capacity.
·
A person is not to be treated as unable to make a decision
unless all practicable steps to help them to do so have been taken without
success.
·
A person is not to be treated as unable to make a decision
merely because they make an unwise decision.
·
An act done, or decision made, under this Act for or on behalf
of a person who lacks capacity must be done, or made, in their best interests.
·
Before the act is done, or the decision is made, regard must
be given to whether the purpose for which it is needed can be as effectively
achieved in a way that is less restrictive of the person’s rights and freedom
of action.
The deprivation of
liberty safeguards were introduced into the Mental Capacity Act 2005 by the
Mental Health Act 2007.8 The safeguards pro-vide a framework for
approving the deprivation of liberty for people who lack the capacity to
consent to treatment or care in either a hospital or care home that, in their
own best interests, can only be provided in circum-stances that amount to a
deprivation of liberty. The safeguards legislation contains detailed
requirements about when and how deprivation of liberty may be authorised. It
provides for an assessment process that must be undertaken before deprivation
of liberty may be authorised and detailed arrangements for renewing and
challenging the authorisation of depriva-tion of liberty.
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