This mythbuster has been updated in light of a ruling by the Supreme Court in March 2014 and to clarify the disclosure of records to attorneys acting under a Lasting or Enduring Power of Attorney.
GPs and their staff (and all providers of health and social care) should have a good understanding of the Mental Capacity Act (MCA) 2005 and the Deprivation of Liberty Safeguards (DoLS) to ensure that they can act in a patient’s best interest.
This mythbuster provides a reminder of the principles of MCA, including:
- When to appoint an independent mental capacity advocate (IMCA)
- Lasting power of attorney (LPA)
- Court of protection.
It then details how the application of DoLS has changed following a Supreme Court Judgement in March 2014.
Principles of the Mental Capacity Act
The principles of the MCA and DoLS, and the key areas affecting GPs are:
- Individuals are presumed to have capacity.
- All practical steps must be taken to support someone in decision-making.
- A person is not to be treated as lacking capacity merely through making an unwise decision.
- An action taken on behalf of a person must be in their best interests.
- Regard must be had as to whether an act or decision is the least restrictive of a person's rights and freedoms.
The MCA prohibits blanket decision-making on behalf of people with capacity issues and introduces a functional test of capacity that is time and decision specific.
It requires everyone who cares for or treats people with capacity issues to respect their individual rights and to act in their best interests when making decisions on their behalf.
For example, if a patient suffers from early stage dementia, and needs to make a decision on whether to have the flu jab, the GP should make every effort to communicate the pros and cons of having the treatment when the patient is most alert. This is so that the patient can make a decision.
A GP becomes the decision-maker only if the patient lacks the capacity to make that decision for them and has not made an LPA granting an attorney or attorneys the power to make decisions about medical treatment. GPs must make the decision for the patient in their best interests and need to know when they can and cannot disclose confidential information.
Other key areas of the MCA affecting GPs are:
- Independent mental capacity advocates (IMCAs).
- The ability for adult patients to make a lasting power of attorney (LPA).
- The establishment of a new Court of Protection.
- Court-appointed deputies. GPs need to be aware of people appointed to these roles and when to involve them in decision-making about patients who lack capacity.
Appointing an Independent Mental Capacity Advocate (IMCA)
The IMCA role is relevant for a person who lacks capacity and has no family or friends whom it would be appropriate to consult, nor do they have an appointed attorney under a lasting power of attorney.
For these people, in certain situations (such as when there is a decision to be made about an NHS body providing serious medical treatment) that body is required to instruct and consult an IMCA. You need to be aware of the duty to appoint an IMCA or to consult an existing IMCA when appropriate.
Lasting powers of attorney (LPA)
LPAs replaced enduring powers of attorney, which can still be used if they were made before October 2007. There are two types of LPA:
- A property and finances LPA allows an attorney to make decisions about financial matters and, unlike a personal welfare LPA, they can be used when the person still has capacity, unless otherwise specified.
- A health and welfare LPA allows an attorney to make decisions about both health and personal welfare. A health and welfare attorney, however, cannot consent to or refuse treatment when the person has capacity to make the decision themselves.
Someone making an LPA can also add restrictions or conditions on areas where they do not wish the attorney to act.
Even if an LPA includes all healthcare decisions, the attorney has no decision-making power to refuse or authorise treatment in certain situations, such as if the patient has made an advance directive to refuse treatment proposed after making the LPA.
In addition, the attorney cannot insist on treatment that a doctor does not believe is in the patient’s best interest.
If you are aware that a patient has made an LPA you need to check whether it covers financial or personal welfare matters and that it applies to the particular situation.
Therefore, if an attorney requests disclosure of a patient's records, you must check 'the information applies to decisions the attorney has the legal right to make' (MCA Code of Practice 16.9). If a personal welfare LPA is in force, you should consider the detail of its provisions and confirm that the patient lacks capacity before complying. A property and affairs LPA attorney may need to have access to medical information occasionally, for example in order to set up health or care annuity policies on behalf of the person without capacity. It may not be necessary to release the entire record but just the relevant parts to the attorney.
To understand the extent of the attorney's power fully, you should read the LPA, which will be registered at the Office of the Public Guardian. Only those over 18 can appoint someone to act as a LPA.
Court of Protection
The court has the power to make a declaration about whether an adult (or a child in some cases) has or lacks capacity, and to appoint a deputy to make a decision on behalf of a person lacking capacity. There are two kinds of deputy, one for property and financial affairs, and the other for personal welfare. The latter can make healthcare decisions on behalf of the person if this is set out in the deputyship order, with the exception that, unlike an LPA attorney for health and welfare, a deputy can never take the decision to stop life-sustaining treatment.
Disputes over a person's capacity, or what treatment is in their best interest can be referred to this court.
Deprivation of Liberty Safeguards
Deprivation of Liberty Safeguards (DoLS) were established in 2009, yet there remains a widespread lack of understanding of what they are and how and when to apply them. As a result we are failing to protect some of most vulnerable people in society. DoLS are part of wider legislation (the Mental Capacity Act, 2005) designed to protect the rights of people who lack the ability—or mental capacity—to make decisions about their care or treatment, and address the occasional need for limits to be put on their freedom to keep them safe.
Article 5 of the Human Rights Act 1998 requires that no-one should be deprived of their liberty except in defined circumstances and that there must be a suitable legal process in place to protect individuals’ rights. DoLS were introduced to provide this legal process as well as protection in situations where taking away someone’s freedom seems unavoidable.
Landmark 2014 case
In March 2014, the Supreme Court clarified complex case law about the DoLS in its landmark ruling on 'P v Cheshire West and Chester Council' and 'P and Q v Surrey County Council'. It ruled that a deprivation of liberty occurs when a person who lacks the capacity to agree to the arrangements for necessary care or treatment is:
(a) under continuous or complete supervision and control and
(b) is not free to leave (regardless of whether they want to or attempt to).
The other significant change was the recognition that deprivation of liberty is widespread in community settings, such as supported living. A small number of cases were taken to the Court of Protection every year, but until this landmark case, the scale of deprivation of liberty wasn’t widely appreciated. To address this, the Supreme Court judgement now encourages local authorities to apply to the Court of Protection for authorisation for deprivation of liberty relating to people in the community.
It is therefore essential that GPs have a robust understanding of the DoLS as well as of the MCA. Our inspectors will expect GPs and practice staff to be able to discuss these during an inspection visit, and know that providers of care are required by law to notify CQC of applications to deprive a person of their liberty and their outcome.
Applying for authorisation for a deprivation of liberty
DoLS set out the processes that must be followed if a health and social care provider believes that they need to deprive someone of their liberty in a care home or hospital. A provider of a care home or hospital is called the 'managing authority'. If they suspect someone using their service is being, or is at risk of being, deprived of their liberty, they must apply to the relevant local authority, called the 'supervisory body', for authorisation. Deprivation of liberty in care homes and hospitals can only be authorised by supervisory bodies, which since April 2013 can only be local authorities. The local authority has to make sure that a number of specific assessments are carried out before it grants an authorisation.
Deprivation of liberty in community settings (such as supported living, extra-care housing and shared lives schemes) can only be authorised by the Court of Protection. The responsibility for applying to the court for authorisation rests with the commissioning body, such as a CCG or local authority. In the case of ‘self-funders’, the responsibility rests with the local authority.
If you suspect that someone is being deprived of their liberty without the necessary authorisation, you should inform the commissioners of the service or the local authority.
Limitations on DoLS
The deprivation of liberty authorisation is in place to protect the person’s rights; it does not mean the care provider must restrict the person’s freedom. Deprivation of liberty safeguards make it clear that a person may only be deprived of their liberty:
- In their own best interests to protect them from harm
- If it is a proportionate response to the likelihood and seriousness of the harm
- If there is no less restrictive alternative.
The same considerations apply to a Court of Protection judge in reviewing a case in a community setting. Other limitations on DoLS include:
- The safeguards do not apply to people detained under the Mental Health Act 1983.
- They do not apply to people under the age of 18 (although the 2014 Supreme Court ruling encourages local authorities to apply to the Court of Protection for authorisation to deprive a 16 or 17 year old of their liberty)
- A deprivation of liberty authorisation does not authorise treatment itself, but only authorises the removal of some freedoms.
DoLS are essential to protect people who are unable to make decisions about their care and whose liberty has been deprived. DoLS still only apply to care homes and hospitals. However, if someone is being deprived of their liberty in community settings, local authorities are now encouraged to apply to the Court of Protection for authorisation. With the recognition that deprivation of liberty is widespread in the community too, it has become more important than ever for GPs to be confident with how and when these safeguards apply. Health and social care professionals have a duty to reduce the risk of depriving people of their freedom, keeping their best interests central to planning and providing care. When this is unavoidable authorisation must be sought and any restrictions must be regularly reviewed.