107 that the adult lacks the capacity to make the SPECIFIC decision at the TIME that decision has to be made. Professionals must clearly record their rationale for why they believe the adult cannot make the decision themselves and must do this for each decision made. For example, one decision could be whether the adult can consent to a Safeguarding Enquiry being undertaken. A separate decision could be whether the adult has capacity to state what outcomes they wish to achieve. NOTE: Mental capacity can only lawfully be assessed in regard to a ‘specific decision to be made at a specific time’. This means that professionals must never assess an adult’s capacity to make decisions in general. Deprivation of Liberty Safeguards The Deprivation of Liberty Safeguards (DoLS) were added to the MCA to provide added protection to adults who are in hospitals or care homes and who lack the capacity to consent to a care & treatment regime that needs to deprive them of their liberty. The DoLS apply where an adult is in a care home or hospital under conditions that involve ‘continuous supervision and control’ and they are ‘not free to leave’ and they lack the capacity to consent to these restrictions. The care home manager or hospital (the ‘Managing Authority’) must make an application to the relevant Local Authority (the ‘Supervisory Body’) if they believe that they are caring for someone who needs to be deprived of their liberty. The DoLS apply regardless of whether the adult is compliant with their care or whether or not everyone agrees that it is in their best interests. All deprivations of liberty should be authorised through a proper legal process. The Supervisory Body will arrange for two assessors to complete the DoLS assessment and, if appropriate, issue an authorisation to the care home or hospital to authorise the detention. While the DoLS only apply in care homes & hospitals, a deprivation of liberty can occur in any care setting – including in an adult’s own home; these are known as ‘Community DoLS’. Such situations should be authorised through an application to the Court of Protection. Professionals working with adults who may be deprived of their liberty should: Familiarise themselves with the provisions of the MCA Take steps to review existing care packages to determine whether there is a deprivation of the adult’s liberty When implementing new care plans, be alert to whether they may lead to a deprivation of the adult’s liberty Where a potential deprivation of liberty is identified, explore alternative ways of providing the necessary care & treatment that might be less restrictive and avoid depriving the adult of their liberty Where a deprivation of liberty is essential, be familiar with how to ensure that this is properly authorised (either through the DoLS or an application to the Court of Protection) If you are unsure about any issue relating to the MCA, DoLS or the Court of Protection, you should seek advice from the MCA Lead within your organisation or the MCA/ DoLS Team based with the appropriate Local Authority. Guardianship Guardianship is a provision of the Mental Health Act (1983) under Section 7 and therefore only applies to an adult with a mental disorder. The Guardian has legal powers to determine where an adult may live, to require them to attend appointments with professionals and to allow access to their residence. It may be useful to consider this specific power if it is felt necessary to remove an adult from a situation or set of circumstances where they are being caused harm. Consideration of whether the powers under Guardianship may be suitable to manage risks and
RkJQdWJsaXNoZXIy NTIyMzU=