The Mental Capacity Act 2005 is a law that protects and supports people who do not have the ability to make decisions for themselves. It also provides guidance to support people who need to make decisions on behalf of someone else.

The Act covers important decisions relating to an individual's property, financial affairs, health and social care. It also applies to everyday decisions, such as personal care, what to wear and what to eat. It also allows us to plan ahead for a time when we are unable to make these decisions for ourselves.

We all have problems making decisions from time to time, but the Mental Capacity Act is about more than that. It is there for situations where someone is unable to make a decision because of the way their brain works. This could be due to illness, brain injury, learning disability, mental health problems, or the effects of drugs or alcohol

People who cannot make a decision for themselves, are said to 'lack capacity'. In law, a person is said to lack capacity if they cannot do one or more of the following things:

• Understand the information given to them
• Retain that information long enough to be able to make a decision
• Weigh up the information available to make a decision
• Communicate their decision.

Someone may have capacity to make some decisions and not others. If they do lack mental capacity to make a particular decision, then it must be made in their 'best interests', taking into account the person's wishes, feelings, beliefs and values.

For more information about the Mental Capacity Act and its safeguards, please look on our Useful Publications pages.

The Mental Capacity Act has not been not been altered by the emergency Coronavirus Act. For more guidance see our Covid-19 information page.

MCA Charter

The MCA Subgroup has developed a MCA Charter, which has been endorsed by the Lambeth Safeguarding Adults Board. This document sets out 10 key principles which we should all adhere to when applying the MCA.

MCA Guidance

To complement the Charter, a simple and easy to use tool has been developed by the Mental Capacity Act subgroup which aims to support professionals in their practice by outlining the essential steps for following the MCA process. It is not intended to be definitive guidance and professionals are asked to please refer to their own organisations MCA Policy and Procedures, as well as the MCA Code of Practice for further information.

Assessing Mental Capacity During Covid-19 

The Mental Capacity Act has not been not been altered by the emergency Coronavirus Act.

When carrying out a Mental Capacity assessment, no option is as good as face to face - but in the current context we need to be able to collect evidence in as many ways as possible. The Court of Protection has confirmed that carrying out video assessments is acceptable during this time. The LSAB’s Performance and Quality subgroup have developed guidance on options available for carrying out MCA assessments including a template to support professionals completing assessments during this time.

For more guidance see our Covid-19 information page.  

Antigen testing, vaccination and mental capacity

Simple guidance has been developed which sets out processes which should be followed when considering antigen testing or vaccination for someone who lacks the relevant mental capacity. Decisions on whether to conduct this test should consider best interests and be made on an individual basis.

Hounslow and Richmond Community Healthcare NHS Trust (HRHC) have produced a new training film aimed at health and social care professionals and carers. The film aims to explain the importance of consent to treatment in a simple ‘show how to know how’ format, and uses possible scenarios to demonstrate the process for applying the MCA and  making a decision in a person's best interests. 

For more information about the film, visit the HRHC website.

The Deprivation of Liberty Safeguards (DoLS) are part of the Mental Capacity Act 2005. The safeguards aim to make sure that people in care homes and hospitals are looked after in a way that does not inappropriately restrict their freedom.

The safeguards set out a process that hospitals and care homes must follow if they believe it is in the person's best interests to deprive a person of their liberty, in order to provide a particular care plan. It is then the role of Lambeth Adult Social Care to arrange for assessments to ensure the deprivation of liberty is in the person’s best interests.

In summary, the safeguards ensure:

• that the arrangements are in the person’s best interest
• the person is appointed someone to represent them
• the person is given a legal right of appeal over the arrangements
• the arrangements are reviewed and continue for no longer than necessary.

A recent court decision determined that a deprivation of liberty occurs when:

• a person is under continuous supervision and control in a care home or hospital, and
• is not free to leave, and
• the person lacks capacity to consent to these arrangements.

Whether someone is deprived of their liberty depends on the person's specific circumstances. A large restriction may sometimes in itself be a deprivation of liberty or sometimes a number of small restrictions added together will amount to a deprivation of liberty.  What needs to be assessed is the amount of control that the care home or hospital has over the person.

For more information about Deprivation of Liberty Safeguards (DoLS) please go to our Useful Publications pages.

If you believe that a friend or relative is being deprived of their liberty, start by talking to the home manager/senior staff member about your concerns. 

If you are not satisfied with the outcome of your discussion, you can contact Lambeth's Deprivation of Liberty Safeguards Service for advice on 020 7926 7748.

For an easy read guide to Deprivation of Liberty Safeguards and what they mean for you, please see our Useful Publications page. 

Do you think someone needs an independent advocate?

There are a variety of reasons why advocacy may be much more important to some people. In the main it is because there are some in society who are more likely than others to be treated unfairly, either because of the prejudice of others or because of their own vulnerability, and frequently individuals who rely on the social care systems have limited personal power and resources to argue their case.

There are a number of Advocacy Services in Lambeth that you can contact directly to access an advocate for yourself or on someone's behalf (with their consent).

• Issue-based Professional Advocacy is available to support people in accessing community care, health and housing services, dealing with financial and family problems and being safe from abuse.

• Under the Care Act 2014, if someone has any difficulties with understanding, retaining or communicating information about their decisions, they are entitled to an advocate as part of their social care assessment process.

• If someone is experiencing abuse/neglect and the local authority is undertaking a safeguarding adults enquiry, they are also entitled to an advocate if there is no-one else available to support or represent them.

There is more information about other advocacy services within the Leaflets and Information section of this website.

Information for parents and carers of adults who may not be able to make decisions

'My Adult, Still My Child' is a website developed with funding from the NHS England Mental Capacity Act (MCA) Improvement Programme and aims to provide clear, accessible information to support parents and carers so that they can better understand their rights and options in decision-making as they continue to support their adult child.

Lambeth’s Deprivation of Liberty Safeguards (DoLS) Service is available to organisations, professionals or members of the public if they need advice in relation to deprivation of liberty safeguards.

The DoLS service can provide advice on any matter relating to deprivation of liberty safeguards, including: 

• whether a deprivation of liberty is occurring
• how to apply for deprivation of liberty safeguards (DoLS)
• how to report an unauthorised deprivation of liberty
• how the DoLS authorisation process works
• how a person's rights will be protected

 
NB: The deprivation of liberty safeguards do not apply to a person subject to detention under the Mental Health Act.

Telephone: 0207 926 7748
Email: LAMBETHDoLS@lambeth.gov.uk
Monday – Friday: 09:00 - 17:00

COVID-19 Update

The emergency Coronavirus Bill does not provide for any modifications to the adult safeguarding or deprivation of liberty (DoLS) framework. The government has provided emergency guidance to advise specifically on this.

Lambeth DoLS Service has produced a letter to give Providers advice and reassurance around DoLS arrangements, available to download here.

Lambeth Safeguarding Adults Board has oversight of use of the Mental Capacity Act 2005 (MCA), including its Deprivation of Liberty Safeguards (DoLS).  The safeguards are used to protect the rights of people who lack the ability to make certain decisions for themselves and make sure that their freedom is not inappropriately restricted.

The increase in applications for DoLS occurred following the Supreme Court’s decision on deprivation of liberty in the Cheshire West case which widened the threshold for what is considered a deprivation of liberty.

Since 2015/16 there has been a steady increase in the number applications sent to Lambeth as Supervisory Body. The Lambeth DoLS Service has therefore remained under high pressure in an attempt to cope with the number of referrals it is receiving.  Due to the demand, it is not always possible to meet all the statutory timescales. This has been an issue across London and the government commissioned a review of the law in this area in 2017. Since then, the government has agreed to replace the Deprivation of Liberty Safeguards with a new system known as Liberty Protection Safeguards. This new legislation is still being considered by the Houses of Parliament. For more information please visit SCIE's website.

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