This section provides a series of frequently asked questions (FAQs) in relation to the implementation of Phase 1 of the Mental Capacity Act.
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 reasons, 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 Mental Capacity Act provides such procedure.
The UK Supreme Court Case of Cheshire West provided a definition of DoL applicable to the whole UK:
a. is the person under continuous supervision and control?
b. Is the person not free to leave?
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 the legal issues are different so the systems are not comparable.
Q. How many people are deprived of liberty every year?
It is estimated that approximately 17,500 people in Northern Ireland are deprived each year. This comprises of 7,500 people in the community and 10,000 in hospital.
The 17,500 does not include people who may be deprived of liberty in their own homes.
Q. What about 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 intensive care?
An exception to the requirement is in intensive care and the deprivation of liberty is a direct result of a physical reason (such as trauma or physical illness) and the treatment is life-saving/sustaining.
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.
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 locking a kitchen door a deprivation of liberty?
No. Preventing access to a room is not a deprivation of liberty. Only if a person is not free to leave and is under continuous control and supervision is a person deprived of liberty.
Q. Is locking a door to prevent someone entering a deprivation of liberty?
No. A person is only deprived of liberty if they are prevented from leaving.
Q. Is a locked door always a deprivation of liberty?
No. A person is only deprived of liberty if they are prevented from leaving. If a 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 (not free to leave) that defines a deprivation of liberty 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.
Q. What if there is no continuous supervision and control where the person is?
If there is no continuous supervision and control the person cannot be prevented from leaving.
Protection from liability
Q. What is the protection from liability?
The Mental Capacity Act provides a protection from a liability that would normally occur in relation to a deprivation of liberty where a person over 16 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 preventing the person from leaving must either have a lawful authority to act (such as an authorisation under the Mental Health Order) or must be protected from liability.
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.
Q. Who can make a capacity assessment?
There are no formal requirements to make a capacity assessment.
To make a statement of incapacity (the formal capacity assessment) the person must be 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. Who can make the financial capacity assessment required for money and 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 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 required for money and valuables in 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.
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 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 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 who is authorised to do so.
Q. Must be 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?
As the law currently applies a parent using valid parental responsibility can consent to a deprivation of liberty of a child or young person under the age of 18. If such valid parental consent exists there are no requirements to apply the Mental Capacity Act in relation to the deprivation of liberty.
If the parent has refused a deprivation of liberty the Mental Capacity Act cannot be used to deprive a child or young person over the age of 16.
If a parent has neither provided or withheld consent the Act can be applied to a young person over the age of 16.
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 Health and Capacity Unit (see ‘Background’ for contact details).
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