This section provides a series of frequently asked questions 'FAQs' in relation to the implementation of Phase One of the Mental Capacity Act.
Glossary
- ‘The Act’ – The Mental Capacity Act (Northern Ireland) 2016
- ‘DoL’ – a deprivation of liberty
- ‘DoLS’ – the Deprivation of Liberty Safeguards
- ‘P’ – a person who is 16 or over that lacks capacity
- ‘D’ – a person carrying out a DoL
- ‘NP’ – P’s nominated person
- ‘ASW’ – Approved Social Worker
- ‘PoSH’ – prevention of serious harm
General Deprivation of Liberty questions
Q. What is a Deprivation of Liberty?
European Convention on Human Rights (ECHR) Article 5 provides a right to liberty. This right can only be breached if there is a lawful reason, as provided in Article 5(1). In the health and social care setting what is relied upon is Article 5(1)(e) “unsound mind”. This includes mental illness, the lack of mental capacity and similar.
ECHR Article 5 also requires a DoL to be authorised “in accordance with a procedure prescribed by law”. The Act provides such a procedure through the Deprivation of Liberty Safeguards.
The UK Supreme Court case known as Cheshire West provided a definition of DoL applicable to the whole UK:
a. is the person under continuous supervision and control?
and:
b. Is the person not free to leave?
If the answer to both of these questions is 'Yes', then that person is subject to a DoL.
Q. What about deprivation of liberty in other jurisdictions?
In England and Wales the Mental Capacity Act 2005 provides a legal framework for deprivation of liberty outside mental health. In Scotland the Adults with Incapacity (Scotland) Act 2000 protects people who lack mental capacity.
In Ireland it is expected that the Assisted Decision-Making (Capacity) Act 2015 will be commenced later in 2022, with the Assisted Decision-Making (Capacity) (Amendment) Bill 2022 currently progressing through the legislative process. In tandem, work is ongoing to develop Protection of Liberty Safeguards legislation.
Q. What about DoL in hospitals?
Deprivation of liberty applies in hospitals as well as in the community; it is settings neutral.
If a person is suffering from mental illness the Mental Health (NI) Order 1986 allows for detention in hospital and must be used.
Q. What about DoL intensive care?
If a person is in hospital and is treated for a very serious illness requiring life-saving treatment, the person is not subject to a deprivation of liberty if the circumstances of the treatment for the physical illness for the person who lacks capacity is the same as for a person who has capacity, even if the factual circumstances meet the acid test.
If the reason for the DoL is the physical illness and not the lack of capacity, the person is not deprived of his or her liberty and the additional safeguards do not apply.
It is not the precise setting which is determinative but the nature of the treatment. This means that, normally, no persons will be deprived of liberty in an intensive care setting but the exemption applies to any life-saving treatment scenario.
Q. What if the person has a mental disorder?
The Mental Capacity Act is illness neutral. If a person is over 16 and lacks capacity the Act applies.
The only exception is during the first phase of implementation when the Mental Health (Northern Ireland) 1986 still applies. The Order can authorise detention in hospital for a mental disorder. If the Order can be used, it must be used and the Mental Capacity Act cannot be used.
Q. What if the person has capacity?
If a person has capacity he or she cannot be deprived of liberty.
Settings for a deprivation of liberty
Q. Where can a deprivation of liberty take place?
A deprivation of liberty that has been authorised using a short-term detention authorisation must take place in a named hospital.
A deprivation of liberty that has been authorised using a trust panel authorisation must take place in a named place where care and treatment is available, such as a nursing/residential home, a ward or department in an acute general hospital, a day care centre, or a domiciliary care/home setting (including supported living settings).
Q. Can an authorisation authorise a deprivation of liberty in more than one place?
Yes. The Trust Panel can authorise a deprivation of liberty in more than one place, as long as the places are specified on the application.
A short-term detention authorisation can only be authorised in one specific hospital.
Q. Is a locked door always a deprivation of liberty?
No. Preventing access to a room is not a deprivation of liberty. A person is deprived of their liberty if they are prevented from leaving a room and they are under continuous supervision and control. If a person is in a room with a locked door and the locked door is opened on request the person is not prevented from leaving.
Q. If a person is allowed to leave, but only when someone else is walking with them, is the person deprived of liberty?
If a person is free to leave and free to go wherever they want whenever they want the person is not deprived of liberty, even if someone walks with them. That is because one of the two conditions that defines a deprivation of liberty (i.e not free to leave) is not met.
If a person is only allowed to leave when it suits the person accompanying the person who lacks capacity, the person is not free to leave (whenever they wish) and is therefore subject to a deprivation of liberty.
Protection from liability
Q. What is the protection from liability?
The Mental Capacity Act does not provide someone with a power to deprive a person of their liberty. Rather, it provides a protection from a liability that would normally occur in relation to a deprivation of liberty where a person aged 16 and over lacks capacity if the criteria for deprivation are met and the safeguards and additional safeguards have been put in place.
Q. Who needs the protection from liability?
Anyone who is depriving someone of their liberty must either have a lawful authority to act (such as an authorisation under the Mental Health Order) or must be protected from liability under the Act and the Deprivation of Liberty Safeguards.
Q. What about the person making the reports, statements, applications and authorisation?
As the Mental Capacity Act does not provide powers to act, but rather protection from liability, the persons making the reports, statements, applications and authorisations do not carry any specific liabilities.
As always, it is expected that health and social care professionals act with full professional integrity and the normal duty of care applies to any decision taken.
Capacity assessments
Q. Who can make a capacity assessment?
To make a statement of incapacity (the formal capacity assessment) the person must be what the legislation calls 'suitably qualified'.
To be suitably qualified the person must be a doctor, nurse, midwife, social worker, occupational therapist, speech and language therapist, dentist or practitioner psychologist with at least 2 years experience and have undergone training approved by the Department of Health.
Q. Is a formal assessment of capacity required to assess the person’s capacity to appeal a deprivation of liberty with the Review Tribunal?
No. A formal assessment of capacity (Form 1) is not required; however, the person making the DoL application must consider if the person has the capacity to make a decision whether to apply to the Review Tribunal or not in respect of the DoL.
The person can lack capacity to decide on his or her care arrangements, perhaps because of an inability to appreciate particular risks, but still have capacity to decide whether an application should be made to the Review Tribunal for an independent check on the Trust panel authorisation.
This distinction is important. This assessment relates to the capacity to decide whether an application should be made or not. Even if the person does not have capacity to understand the details of the Tribunal process, he or she may still have capacity to decide whether or not to apply for an independent check on care arrangements that amount to a deprivation of liberty.
The level of decision making ability required in relation to a Tribunal application is in most cases likely to be less than that needed to make a decision about the care arrangements which are being authorised. This is because the decision making process does not, on the whole, involve weighing information about risk.
If P is able to understand (a) that the care arrangements mean that someone will always be checking on him or her, (b) that he or she cannot leave when he or she wishes to leave, and (c) that a meeting can take place to decide whether or not that should be allowed, then it is likely that the person has the capacity to apply to the Review Tribunal.
Q. Who can make the financial capacity assessment required for money & valuables in residential care and nursing homes?
There are no requirements on who can make the financial capacity assessment.
It is expected that this will be normal business for those professionals working with inpatients in hospital or residents in residential care and nursing homes. It is therefore expected that this is carried out by doctors, nurses, social workers and others.
Q. Is a formal assessment of capacity reagarding finances required for money & valuables in hospitals and residential care and nursing homes?
No. There is no requirement for a formal assessment of capacity and Form 1 is not required.
However, Form 1 provides all the steps required to consider capacity and may be a useful tool in ensuring that all aspects of the Mental Capacity Act is considered.
Best interests
Q. Who can make best interests assessments / statements of best interests?
There are no formal requirements on who can make best interests assessments of make the statement of best interests on Form 2.
Q. What does special regard mean?
When considering best interests regard must be had to a number of factors. Section 7 of the Mental Capacity Act also requires special regard to past and present wishes, feelings, beliefs and values and anything else the person would have considered.
The medical report
Q. Does the doctor have to see the person before making the medical report?
Yes. The doctor must examine the person personally no more than 2 days before making a medical report.
Q. Who can make the medical report?
Any doctor that has two years experience (pre or post qualification) that has undergone the DoLS mandatory training approved by the Department of Health can make a medical report.
Q. Does a GP have to be involved?
No. Any doctor that has two years experience (pre or post qualification) that has undergone the DoLS mandatory training approved by the Department of Health can make a medical report.
Discharge from detention
Q. Who can discharge a person from a deprivation of liberty authorisation?
A short-term detention authorisation can be discharged by the responsible medical practitioner.
A Trust Panel authorisation can be discharged by anyone with authority to do so.
Q. Must a person be discharged from an authorisation before they are free to leave?
No. An authorisation is not in itself sufficient to deprive a person of liberty. If any of the criteria for detention are not met the person must be free to leave.
Q. How is a person discharged from an authorisation?
A discharge must be made in writing on Form 21.
Children and young people
Q. Does the Mental Capacity Act apply to children and young people?
The Mental Capacity Act applies to anyone who is 16 or over.
Q. What about parental responsibility?
A parent, or anyone else with parental responsibility, cannot agree or consent to a deprivation of liberty for a 16 or 17 year old. If a 16 or 17 year old is deprived of liberty and no other statutory power can be used, the Act can be used to authorise a deprivation of liberty.
If deprivation of liberty is required in secure accommodation, the Children (Northern Ireland) Order 1995 is usually the most appropriate legislation to use.
If the 16 or 17 year old requires deprivation of liberty in a psychiatric hospital for a mental disorder as specified in the Mental Health Order, then the Mental Health Order is the legal framework to use.
In all other settings the Mental Capacity Act can be used. The process and criteria for a DoL in respect of a young person are the same as for anyone over 18.
The place of the DoL may be a school, day centre, care home, respite unit or the young person’s own home.
The same criteria applies to young people as applies to adults.
Appeal of a deprivation of liberty authorisation
Q. Can an authorisation be appealed?
Yes. A short-term detention authorisation or an interim or full trust panel authorisation can be appealed to the Review Tribunal.
Q. Can a refusal to grant an authorisation be appealed?
No. Only a decision to authorise a detention can be appealed.
Q. Are there time limits for the referral to be made and for the Review Tribunal to consider the case?
An application can be made to the Tribunal at any time during an authorisation. The Tribunal will then consider the case.
Q. If it is decided that P lacks capacity whether to apply to the tribunal and a Form 7 completed, does this mean that the case will automatically be considered by the Review Tribunal?
No. If a Form 7 is completed the Attorney General must be notified. The Attorney will then consider whether the case should be referred to the Review Tribunal.
More information and guidance can also be found in the ‘Code of Practice ’ section of the MCA website.
If you have any other queries, you can contact the DoH Mental Capacity Act Unit and Capacity Unit, contact details our avialble on our website via 'Useful Information and Contacts'.
Training
Q. What training and re-training requirements are there for working in DoLS?
There are a number of different DoLS roles which have different levels and frequencies of training. Full details and resources are provided in the ‘Training’ page.
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