National Mental Capacity Act and Deprivation of Liberty Safeguards Sub Group

The National Mental Capacity Act and Deprivation of Liberty Safeguards Sub Group provides national leadership, support and advice in the delivery of the Mental Capacity Act (MCA) and the Deprivation of Liberties (DOLs), within healthcare across England. The group was set up as a sub-group of the National Safeguarding Steering Group (NSSG) to support the delivery of the NSSG work plan specifically in relation to the MCA and DoLs.

The group supports providers and commissioners to make sure the Mental Capacity Act and the Deprivation of Liberty Safeguards are implemented and the House of Lord Recommendations achieved.

Achievements over the last year and why the work of your group is making such a difference

In 2014/15 the NSSG funded MCA and DoLs projects across the regions to support the achievement of the House of Lords recommendations. £ 5.9m was allocated to NHS England teams to support this work. Key achievements were frontline training of staff including GPs on the processes and statutory duties, increased numbers of best interest assessors and development of tools to support staff such as z cards and apps. Patients and citizens were consulted in an attempt to understand how being subject to safeguards felt. This resulted in a ‘my rights under the MCA’ guide – accessible for hearing impaired people being produced, as well as a GP resource ‘my next patient may lack capacity’. Video newsletters  and good practice guides for staff on communication have also been developed.

“Sometimes patients can’t make discussions about themselves because they lack capacity to do so. It is our duty to ensure that when patients are assessed as lacking capacity their best interests are met. In very specific circumstance a patient’s liberty can be taken away, to make sure they are safe or have the right medical treatment. At any time we must be prepared to speak out if we feel a patient’s best interest are not being considered or they are being detained inappropriately.”

Helen Hipkiss, Regional Safeguarding Lead – Midlands and East

Mental Capacity Act

The Mental Capacity Act (MCA) is designed to protect and empower individuals who may lack the mental capacity to make their own decisions about their care and treatment. It is a law that applies to individuals aged 16 and over.

Examples of people who may lack capacity include those with:

  • dementia
  • a learning disability
  • a brain injury
  • a mental health condition
  • a stroke
  • Substance or alcohol misuse
  • Confusion, drowsiness or unconsciousness because of an illness or the treatment for it

However, just because a person has one of these conditions does not necessarily mean they lack the capacity to make a specific decision. Someone can lack capacity to make some decisions (for example, to decide on complex financial issues) but still have the capacity to make other decisions (for example, to decide what items to buy at the local shop).

The MCA says:

  • Everyone has the right to make his or her own decisions, which could be deemed unwise by others. Health and care professionals should always assume an individual has the capacity to make a decision themselves, unless it is proved otherwise through a capacity assessment. Individuals must be supported in being able make a decision themselves. This might include, for example, providing the person with information in a format that is easier for them to understand.
  • Just because someone makes what those caring for them consider to be an “unwise” decision, they should not be treated as lacking the capacity to make that decision. Everyone has the right to make their own life choices, where they have the capacity to do so.
  • Where someone is judged not to have the capacity to make a specific decision at a specific time, (following a capacity assessment), that decision can be taken for them, but it must have to been to be in their best interests.
  • Treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms possible, while still providing the required treatment and care.

The MCA also allows people to express their preferences for care and treatment in case they lack capacity to make these decisions. It also allows them to appoint a trusted person to make a decision on their behalf should they lack capacity in the future.