MCA resources on Deprivation of Liberty Safeguards

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Understanding clinical decision-making at the interface of the Mental Health Act (1983) and the Mental Capacity Act (2005)

King's Fund

This report explores the context in which the decision of whether to use the MHA or the MCA to authorise a deprivation of liberty is made and the different factors that practitioners use to assess and weigh up which Act is most appropriate and ‘least restrictive’ for the individual concerned. The research used a mixed-methods approach with an online survey to capture the diversity of factors that influence decision-making across clinical groups, and qualitative interviews with clinicians and professionals to explore in depth their understanding of the interface and experiences of making this decision in practice. A large proportion of participants in this research report encountering people to whom this decision applies at least once a month, if not weekly. This decision most commonly applies to people who have dementia, but also to people with a wide range of mental disorders, including those with functional mental illnesses, neurodevelopment and neurological conditions. Participants report most commonly applying this decision to people in community settings, but application also occurs in mental health and acute hospitals including in the emergency department. There is a lack of common understanding around fundamental issues on which this decision is based including core concepts of capacity and objection. Blanket rules exist within professional groups and across different settings that restrict decision-making. The rights afforded to people admitted and treated in some settings and areas of England may not be afforded to those in others. The majority of participants report that their training covered decision-making at the interface of the Acts. However, codes of practice and case law are described as difficult to understand and keep up to date with. Understanding clinical decision-making at the in. Practitioners highlight a number of different ways in which patients are unlawfully deprived of their liberty as a result of the factors outlined above.

Last updated on hub: 23 February 2021

Mental Capacity Act 2005, Deprivation of Liberty Safeguards England, 2019-20

These official statistics provide findings from the Mental Capacity Act 2005, Deprivation of Liberty Safeguards (DoLS) data collection for the period 1 April 2019 to 31 March 2020. DoLS are a legal framework that exist to ensure that individuals who lack the mental capacity to consent to the arrangements for their care, where such care may amount to a "deprivation of liberty", have the arrangements independently assessed to ensure they are in the best interests of the individual concerned. The data is collected from local authorities in England, who are the supervisory bodies for authorising deprivations of liberty of adults in care homes and hospitals. There were 263,940 applications for DoLS received during 2019-20, relating to 216,980 people. The number of applications has increased by an average of 13.9% each year since 2014-15. The proportion of completed applications in 2019-20 that were not granted was 51.0%. The main reason was given as change in circumstances, at 62.0% of all not granted cases. The proportion of standard applications completed within the statutory timeframe of 21 days was 23.6% in 2019-20. The average length of time for all completed applications was 142 days.

Last updated on hub: 17 February 2021

Mental Capacity (Amendment) Act: impact assessment (IA)

Department of Health and Social Care

Assessment of the amendment, which introduced the liberty protection safeguards to replace the deprivation of liberty safeguards. the liberty protection safeguards (LPS) were introduced in the Mental Capacity (Amendment) Act 2019. LPS will provide the framework to determine whether a deprivation of liberty is necessary and proportionate for the care or treatment of an individual who lacks the mental capacity to consent to their arrangements, in England and Wales. They will replace the deprivation of liberty safeguards (DoLS) system, which was found to be “bureaucratic” and “too complex” by a House of Lords Committee in 2014. This impact assessment is an updated assessment of the Mental Capacity (Amendment) Act 2019. It provides an assessment of DoLS at present and fully funded, as well as for LPS as set out in the act.

Last updated on hub: 01 February 2021

Liberty Protection Safeguards: overview of the process

Information about the LPS system, which will be replacing the Deprivation of Liberty Safeguards (DoLS). DoLS is the system used to authorise the care or treatment arrangements of an individual who lacks mental capacity to consent to their arrangements. These safeguards apply when a person is ‘deprived of their liberty’ in a care home or hospital, in England or Wales. This guidance covers: making a referral; representation and support; assessments and authorisation; and reviews. [Updated 26 January 2021]

Last updated on hub: 08 December 2020

Liberty Protection Safeguards: what they are

Department of Health and Social Care

Information about the Liberty Protection Safeguards (LPS) system, which will be replacing the Deprivation of Liberty Safeguards (DoLS). The LPS will provide protection for people aged 16 and above who are or who need to be deprived of their liberty in order to enable their care or treatment and lack the mental capacity to consent to their arrangements. The guidance outlines the key changes introduced by the LPS: three assessments will form the basis of the authorisation of Liberty Protection Safeguards; greater involvement for families; targeted approach; extending the scheme to and 16 and 17-year-olds; extending the scheme to domestic settings; and the roles of clinical commissioning groups (CCGs), NHS trusts and local health boards as Responsible Bodies. [Updated 26 January 2021]

Last updated on hub: 30 November 2020

Webinar recording: Sharing voices in response to COVID-19

Social Care Institute for Excellence

This webinar was chaired by Baroness Ilora Finlay and the technical host was Prof Wayne Martin. It was about sharing voices in response to COVID-19.

Last updated on hub: 22 October 2020

Adult social care: Covid-19: winter plan 2020-2021 newsletter

39 Essex Chambers

This note provides an overview of the Department of Health and Social Care (non-statutory) guidance ‘Adult social care: our COVID-19 winter plan 2020 to 2021’. It discusses the key issues for local authorities, and in particular the interplay with the wellbeing principles of the Care Act 2014, including managing a potential conflict in terms of the wellbeing of both care home residents and those in the community with care and support needs as regards prevention of C-19. It also looks at the implications of the winter plan for the right to respect for family and private life, addressing the tension between the imperative to protect the health of social care users (and the social care workforce) and the need to respect the family life and private life rights of those who might be subject to protective restrictions. Finally, it explores the impact of the winter plan on deprivation of liberty safeguards, in particular in relation to testing and 14-day isolation requirements.

Last updated on hub: 06 October 2020

Webinar recording: COVID-19, DoLS, and Best Interests

Social Care Institute for Excellence

This webinar was chaired by Baroness Ilora Finlay and the technical host was Prof Wayne Martin and discussed COVID-19, DoLS, and best interests.

Last updated on hub: 01 October 2020

Use of the Mental Capacity Act and safeguarding procedures in prison and young offender establishment healthcare teams in London: an audit of professional practice

The Health Foundation

Findings of an audit on the use of the MCA and Safeguarding Adults procedures across the nine prison and young offender institution healthcare teams in London. The audit reveals that: safeguarding is afforded a high priority by offender healthcare services; the organisational infrastructures for safeguarding (policies, procedures, training, etc) were rated higher than the infrastructures for the Mental Capacity Act (MCA); there are good working relationships between prison authorities and healthcare services around safeguarding, but the role of healthcare staff in safeguarding is limited by the prison context; mental capacity tends to be treated within offender healthcare services as an aspect of safeguarding; knowledge of and practice around the MCA is patchy – senior clinicians tend to have a good grasp of their obligations under the Act and how to apply them, while frontline nursing and other staff generally do not; there is a very weak infrastructure to support practice in relation to the MCA (policies and procedures, training, information, guidance, supervision, records); it is recommended that priority be given to strengthening the infrastructure to ensure that frontline practice in offender healthcare services is compliant with the MCA and the Care Act.

Last updated on hub: 20 September 2020

Mental Capacity Act (2005) and Deprivation of Liberty audit tool for primary care

NHS Kent and Medway Clinical Commissioning Group

This audit tool includes examples of the evidence needed to meet the CQC requirements in the four domains (safe, effective, caring, and well-led).

Last updated on hub: 20 September 2020

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