Mental capacity and deprivation of liberty

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.