The five statutory Principles in the Act are the values that underpin the legal requirements of the Act and which must be taken account of in relation to every DoL. The first four Principles are all in relation to Capacity. The fifth Principle is in relation to Best Interests.
Principle 1 - No-one should be treated as lacking capacity unless proven they do
A person who is thinking about carrying out a deprivation of liberty must not misinterpret the first Principle as requiring them to presume or assume that the person has capacity or that the person lacks capacity. The Principle places the onus on a person intending to carry out the DoL to have properly established a person’s capacity. However, the starting point when establishing capacity should be that the person has capacity.
Principle 2 - No assumptions can be made
This Principle forbids any assumptions based merely on any condition that the person has or any other characteristics of the person.
Such a condition or characteristic may be a disability, age, appearance, physical or mental illness or anything else. Just because a person presents symptoms of a condition that often, or sometimes, can suggest a person lacks capacity cannot be used as the reasoning for establishing or concluding that the person lacks capacity.
Principle 3 - Help and support must be provided
This principle requires that anyone who is considering whether a person lacks capacity must consider and provide all practicable help and support to allow the person to make their own decision.
No determination of lack of capacity can be made until all practicable help and support has been provided.
This helps individuals to play as big a role as possible in the decision making process to retain as much autonomy as possible.
Principle 4 - No assumptions can be made because of unwise decisions
All persons have their own wishes, feelings, beliefs and values. No one should be assumed to lack capacity just because they make a decision that to others may appear unwise.
This applies even if family members, friends, health and social care staff or others are unhappy with the decision. Unwise decisions are even allowed if the decision is one that could have negative effects on the person making the decision.
Principle 5 - All acts and decisions must be made in the person's best interests
The fifth principle requires any act done or decision made on behalf of a person who is 16 or over and lacks capacity, to be in that person’s best interests. Further information on this can be found in Chapter 6 of the DoL Code of Practice.
The person determining best interests is required, so far as is practicable, to encourage and help the person to participate as fully as possible in the decision making process.
Special regard must be given to P’s values and beliefs, and past and present wishes and feelings.
The person determining best interests must also consult with others and take into account their views as to what would be in the best interests of the person who lacks capacity.
The person determining best interests must also have regard to any less restrictive alternatives to the proposed deprivation of liberty.
More detail on the Principles is available in Chapter 3 of the Code of Practice.
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