Safeguarding and Vulnerabilities Team

What is mental capacity?

Mental capacity is the ability to make a certain decision at the time the decision needs to be made. Sometimes, medical conditions that affect the brain can make this difficult. Sometimes they prevent the person from being able to make the decision altogether. In this case, the person is said to lack capacity.

How does the Mental Capacity Act protect me?

The Act protects the rights of everyone aged over 16 to make decisions for themselves.

The Act says that the people looking after you must respect your wishes as much as possible. We cannot say that you lack capacity without carrying out an assessment with you. This assessment is called an MCA assessment, or a capacity assessment. We assess how well you can understand, remember, use (weigh up) and communicate relevant information.

When we are helping you to make decisions, the Act says we must abide by 5 principles:

1.       We must always presume you have capacity until assessed otherwise.

2.       We must do all we can to help you choose for yourself.

3.       We must respect your right to make a decision we think is unwise.

4.       If we decide for you, we must do what is in your best interests.

5.       When we decide for you, we must make the least restrictive choice.

What is a Deprivation of Liberty (DoL)?

Sometimes, a person who lacks capacity will need care that keeps them safe from harm. This is referred to as “restrictive practice” or “restrictive care”. The Act says that receiving this care can mean the person is deprived of their liberty. The NHS cannot deprive you of your liberty without applying for permission. If you are over 18, we do this by submitting a Deprivation of Liberty Safeguards (DoLS) application to your local council.

For the first two weeks that you are subject to a DoL, we authorise ourselves to deprive you of your liberty. After this, it is up to the Council to assess you and the care we are giving. They then either grant or deny permission to continue.

Why might I need to be deprived of my liberty?

Disorders of the mind can stop us from being able to keep ourselves safe. These disorders can be long term, such as Dementia or a Learning Disability. They can be short term, such as confusion caused by infection or strong medication. They can make us behave in ways that put us at risk of harm, such as:

• Trying to walk without help when we are at high risk of falling
• Trying to leave a safe place when we don’t know where we are
• Pulling out lines and tubes that are providing important fluids or medicines
• Acting in a way that others think is aggressive

What is restrictive care?

Constant supervision, control of your movements around the hospital, not being free to leave, use of sedatives, providing essential care you do not consent to are all examples of restrictive care.

Remember – the Mental Capacity Act says that we must choose the least restrictive option available to keep you safe

Will my family be informed?

Yes. The law says we must inform someone close to you, ideally your named Next of Kin, that we have applied to deprive you of your liberty.

Who makes sure the hospital is respecting my rights during a DoL?

We submit DoLS requests to the DoLS team at your local council. We must show them that we are treating you lawfully and safely. We must tell them how we are restricting you and explain why you would not be safe if we took the restrictions away. If they grant permission for the DoL, they state how long we can do that for, and under what conditions.

What if my capacity improves?

If you are subject to a DoL, we review the restrictions in place daily. This is to check they are still necessary. We will reassess your capacity to consent to your care regularly. If your capacity improves, and you no longer require the restrictions, we will remove them. If they are still necessary, we can only continue with them with your consent.

Can I object to a DoL?

You have the right to appeal against any deprivation of your liberty. Talk to the staff who are looking after you, they will explain why it is in place. If you are not satisfied with the explanation, ask to speak to a member of the Safeguarding Team who can assist you with taking further advice.  

Who else can support me?

A person close to you, usually your chosen Next of Kin, will be named on the DoLS application. They are known as your “Relevant Person’s Representative”, or RPR. Their views on your DoL must be considered.

If you do not have anyone close to you, or you do not want them involved in making decisions about you, you have the right to an Independent Mental Capacity Act Advocate, or IMCA. We can refer for an IMCA on your behalf.

The Safeguarding Team at the hospital oversees all DoLS applications made by the ward staff. They are available to provide advice and support to staff, patients and carers.

I have a named Next of Kin – can they make decisions on my behalf?

Only if they have been given the legal power to do so. This table shows who can make decisions about your healthcare.

What does “Best Interests” mean? 

If we are deciding for you, we must think very carefully about it. We must listen to you and the people that know you best. We must try to figure out what you would decide for yourself if you were able. This is what Best Interests means.

Some Best Interests decisions are simple, and some are more complicated. Sometimes a formal meeting is needed to allow everyone to contribute, including you. This is called a Best Interests meeting.

Sometimes, your healthcare team will make a different decision to what you or your loved ones would like. This might be because the treatment is too risky, not available, or is likely to damage your quality of life instead of improving it.

Where can I find out more?

MCA and DoLS – talk to your healthcare team or ask for support from the Safeguarding Team

The Vulnerabilities Team are available to give advice and support to certain groups of patients:

• Mental Health & Dementia
• Learning Disability & Autism 
• Transition to Adult Services

Please ask your ward team for more information.

Office of the Public Guardian – This email address is being protected from spambots. You need JavaScript enabled to view it. 0300 456 0300

Court of Protection – This email address is being protected from spambots. You need JavaScript enabled to view it. 0300 456 4600