The Mental Capacity Act

What does lacking capacity mean?

The Mental Capacity Act is a law about making decisions. It describes a process to be followed when someone cannot make a decision for themselves at a specific time because their brain/mind is impaired. This is referred to as lacking capacity.

A Deprivation of Liberty Safeguard is a part of this law.

Deprivation of Liberty Safeguards

What does this mean?

When somebody is staying in hospital, they may not be able to make a decision(s) about the care they receive because they lack capacity. This means some decisions may need to be made on their behalf.

If it is decided that the care necessary to keep your family member or friend safe impacts on their freedom, this is referred to as depriving someone of their liberty. You will have been consulted about these decisions.

If a hospital identifies that it’s depriving someone of their liberty in the person’s best interest to prevent significant harm, then it needs to ensure the law is followed.

What must the hospital do?

The hospital must inform the local authority of the planned care arrangements.

The hospital will request that the local authority provides an independent assessment to give an assurance that it is acting in the person’s best interests and that the deprivation is necessary. This is because people who lack capacity for
their care arrangements need extra protection.

Why does the local authority have to be informed?

The local authority must carry out a number of assessments to check and authorise the care arrangements provided by the hospital. This provides a safeguard.

So what will happen next?

A doctor will come to the hospital and meet with your family member or friend and staff. They will be able to confirm to the local authority if your family member or friend lacks capacity.

A Best Interest Assessor (BIA) will also visit to speak to you and your family member or friend about their care arrangements. The BIA will be checking that the loss of liberty is lawful and the care arrangements are appropriate. They will provide you with some more information about the law.

Both the doctor and BIA will provide their assessments to the local authority and if it is agreed, the arrangement will be authorised.

What if the authorisation is not granted?

If an authorisation cannot be given, you and your family member or friend will be notified. The hospital will need to ensure the person’s care is arranged in a way that does not amount to a deprivation of their liberty.

What will change for my family member or friend if it is granted?

Your family member or friend’s care will not change because of this process. A Deprivation of Liberty Safeguard’s purpose is to provide assurance for vulnerable people about their care when they are unable to make decisions about that care themselves.

Does this mean my family member or friend cannot be discharged from hospital?

No. The hospital will need to continue to engage you and your family member or friend in the care they receive. If the hospital deems the care no longer amounts to a deprivation of liberty or care can be provided in a less restrictive way, be that in the hospital or elsewhere, it will need to let the local authority know.

This will mean that the authorisation will end. It may be if care continues in another cared-for setting the hospital will need to make another request for an authorisation if the above still applies.

What will I need to do?

You will not need to do anything. However the BIA will speak with you about what will happen if an authorisation is given.

When an authorisation is given, someone must be appointed to represent the interests of the person whose liberty is being deprived. This is referred to as the Relevant Person’s Representative (RPR). The BIA will speak to you and ask if you would like to act as the RPR for your family member or friend.

What if I or my family member or friend disagrees?

If an authorisation is given and you don’t think it is in the person’s best interests, you can ask the hospital or local authority about this.

An authorisation can be challenged at the Court of Protection and during the process the BIA will explain this to you.

Questions

If you have any further questions or concerns, please speak to your family member or friend’s named worker or the ward manager.

Compliments and concerns

For information regarding compliments or concerns please visit our Complaints and Compliments page