Mental capacity and decision making

Mental capacity, the Deprivation of Liberty Safeguards, and decision making

The Mental Capacity Act affects anyone who is unable to make some or all decisions.

What does the law involve?

The law means that you cannot make decisions for adults unless they are incapable of making a decision for themselves. This means that every opportunity must be given for the person to make those decisions. They must be supported to do this where this is necessary, for example by being offered an advocate to speak on their behalf.

There is also a duty to safeguard adults who cannot make their own decisions about their own safety.

It is only when the person is unable to decide, that you may make a decision for them in their best interests.

The Deprivation of Liberty Safeguards (part of the Mental Capacity Act 2005) strengthen arrangements for people who lack capacity, and are being cared for in registered care homes, registered nursing homes or hospitals.

Sometimes people need to be cared for, or medically treated, in a way that restricts their freedom of movement. In such cases the agency caring for the person will apply these restrictions following guidance and authorisation.

The Deprivation of Liberty Safeguards (DOLS) authorisation process requires consultation and a range of assessments to guide the decision makers.

What do I need to do?

A Managing Authority (the hospital or care home in which the person is, or may become, deprived of their liberty) has responsibility for requesting an authorisation.

The Supervisory Body is responsible for considering this request, commissioning the required assessments, and, where all the assessments agree, authorising the deprivation of liberty. 

If you are a Managing Authority and need to apply for for either an urgent or standard authorisation check the referral process and send the DoLS Request Form to the Supervisory Body for Sandwell.

Where can I find out more?

The Sandwell Safeguarding Adults Board (SSAB) leads on training and raising awareness of mental capacity and restriction issues in Sandwell.  

The Ministry of Justice has information about the Act, and how it affects you and people you come into contact with. This includes the following things.

  • What you can do now to choose somebody you trust to make decisions on your behalf in future. 
  • What to do if you have concerns about someone not being able to make decisions for themselves. 
  • What to do if you have to make decisions for someone else.

If you work with adults at risk you should refer to guidance on reducing the need for restraint.

Independent Mental Capacity Advocate (IMCA)

IMCA is a type of advocacy service that has to be provided under the Mental Capacity Act. An advocate is someone who supports a person so that their views are heard and their rights are upheld. IMCA services are provided by organisations that are independent from the council or NHS.

There are rules and procedures decision makers have to follow when they are considering if a person may need an IMCA. These are in the SSAB's IMCA protocol for Sandwell

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