The Mental Capacity Act 2005 covering England and Wales provides a statutory framework for people who lack capacity to make decisions for themselves, or who have capacity and want to make preparations for 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. A
dded to the Act in 2009 was The Deprivation of Liberty Safeguards (DOLS). This is for people who lack the capacity to consent to particular treatment or care that is recognised by others as being in their best interests, or which will protect them from harm. Where this care might involve depriving vulnerable people of their liberty in either hospital or a care home, extra safeguards have been introduced in law to protect their rights and ensure that the care or treatment they receive is in their best interests.
The care facility l known as ‘the managing authority’has to make a DOLS application to‘the supervisory body’ (PCT or local authority) to seek approval to put a patient on a DOLS authorisation. The clinical team can apply for a Urgent Authorisation which gives immediate authorisation to detain the patient in hospital for up to 7 days.
Also at the same time the clinical team have to make a Standard Authorisation to allow further detention of the patient after 7 days as this may be required for the patient. Two independent assessors are sent out by the supervisory body to assess the patient to see if a standard DOLS authorisation is required and is to be approved by the supervisory body.
These enable people to appoint someone they know and trust to make decisions for them, usually family members.
There are two types of LPA:
Anyone making the LPA must be over 18 and have capacity, and the LPAs MUST be registered with the Office of Public Guardian (OPG) for them to be legal and lawful to implement. Chosen attorneys can only make decisions in the person’s best interests.
These allow the person concerned to refuse specified medical treatment in advance, providing the person is over 18 and has capacity at the time the ADRT is made.
The ADRT must clearly specify the treatment it applies to and in what circumstance. It MUST be in writing, signed and witnessed if it applies to life-sustaining treatment, clearly stating the decision applies ‘even if life is at risk’. An ADRT does not have to go through a legal process: the person concerned can just write it down like doing a letter. ADRTs are legally-binding as long as they are valid and applicable: medics can treat if there is any doubt that the ADRT is valid and applicable.
This is a new role created within the MCA 2005 as an extra safeguard for particularly vulnerable people in specific situations – for when someone has been assessed, lacks capacity, and has no-one to consult with (ie: no family, friends, or carers) and a decision needs to be made in their best interest.
In such cases it is a statutory duty to refer the person concerned to an IMCA, especially if the decision is about serious medical treatment, long-stay hospital care (ie: 4 weeks or more) and or accommodation in a care home (ie: 8 weeks or more). The IMCA has statutory right to see the patient in private; have access to medical/nursing records; and speak to clinical staff about the patient’s condition regarding the best interest decision to be made. However, IMCAs do not make the best interest decision but work with the medic in charge of that patient’s treatment.