Final report from the Law Commission’s review of the Mental Capacity and Deprivation of Liberty Safeguards (DoLS), which considered how the law should protect people who need to be deprived of their liberty in order to receive care or treatment and lack the capacity to consent. The review found that DoLS were overly technical and legalistic, often failed to achieve any positive outcomes for the person concerned or their family, and could not deal with the increased numbers of people considered to be deprived of their liberty following the Cheshire West ruling. The report provides recommendations for the reform of the legal framework and proposes that the DoLS should be replaced by a new scheme, the Liberty Protection Safeguards. The proposed scheme would cover a broader group of people, including any setting that might give rise to a deprivation of liberty and would also cover 16 and 17-year-olds. A draft Bill attached to the report provides details of the new scheme. The draft Bill also includes amendments to other parts of the Mental Capacity Act to provide increased protection for people whose rights to respect for their private and family life and their home, whether or not they risk being deprived of their liberty. The Law Commission also recommended that the Liberty Protection Safeguards should be accompanied by the publication of a new Code of Practice covering all aspects of the Mental Capacity Act. An impact assessment and a summary of the report are published alongside the final report.

This book is designed to help conduct robust assessments whilst at the same time enabling professionals to provide optimum outcome for those under their charge. It also aims help achieve these goals: set the threshold of understanding which is necessary for every assessment; clearly define seemingly ambiguous phrases such as ‘unwise decisions’ and ‘the functional test’; recording assessments ensuring they stand up to legal scrutiny.

This guidance note sits alongside our guidance note on carrying out and recording capacity assessments, and is designed to assist social workers and those working in frontline clinical settings when they asked to consider a person’s capacity to make a decision or decisions. As set out in our guidance note, the courts have now applied the MCA 2005 in respect of very many types of decision. In the course of doing so, they have given indications as to what they consider to be relevant (and sometimes irrelevant) information for purposes of those decisions – i.e. what the person must be able to understand, retain, use and weigh to able to make the decision. This guidance note pulls together the guidance given in relation to some of the most common decisions that are encountered in practice in the context of health and welfare matters.

With a growing global ageing population, approaches to assess and support decision-making are becoming more pertinent. This scoping review aimed to identify and map current knowledge on assessment of older adults’ decision-making capacity in relation to independent living. A five-stage scoping review framework was followed. Inclusion criteria were papers on assessment approaches used to evaluate decision-making capacity of older adults, aged 60 years and over for independent living, including studies involving people with cognitive impairment and dementia. Five databases were searched for publications with eligibility criteria from January 2000 to December 2020; 4,118 results were retrieved from sources, resulting in 29 publications being analysed, eight of which were research reports. Publication characteristics and methodologies varied; however, many common components of decision-making capacity assessment for independent living were identified including cognitive, functional, environmental and risk assessment. Overall, a multidisciplinary approach was recommended, and consideration of the person’s values and preferences is noted in many publications. Decision-making capacity assessment for independent living of older adults requires multicomponent, multidisciplinary assessment. Future work is needed to examine this from the perspective of older adults and their caregivers.

Up to 75% of UK care home residents may lack the mental capacity to make certain decisions (Wade, Clinical Rehabilitation, 2019, 33, 1561-1570). Care home staff need evidence-based tools to help them assess residents’ mental capacity and provide decision-making support (NICE, Decision-making and mental capacity NICE guideline NG108, 2018). The Mental Capacity Assessment Support Toolkit (MCAST) was designed to support multidisciplinary healthcare staff to prepare, complete and document legally compliant mental capacity assessments. MCAST has not yet been trialled in care homes. This study used a descriptive qualitative design to: (a) understand the current challenges faced by care home staff when supporting residents to make decisions and participate in mental capacity assessments; (b) explore staff members’ support needs in this context and (c) to identify if and how the toolkit could be adapted for use in care homes. A purposive sample of 29 staff working as managers (n = 18), nurses (n = 7) and care assistants (n = 4) across five care homes in North West England participated in five semi-structured focus groups between May and July 2019. Data from the focus group transcripts were analysed thematically (Braun & Clarke, Qualitative Research in Psychology, 2006, 3, 77-101). Five main themes were identified: (a) involvement of residents in decision-making; (b) approaches to mental capacity assessment; (c) working with residents with communication difficulties; (d) feelings about practice and (e) responses to MCAST. Participants appeared competent and confident about supporting decision-making and assessing capacity, but recognised the complexity of this area of practice, and identified a need for further support. They reported a range of challenges, including accessing support from speech and language therapists for residents with communication needs. They responded positively to the toolkit and were keen to use it in practice. This study suggests that care home staff would benefit from, and welcome, support to develop their practice. Furthermore, MCAST appears usable in this context and formal feasibility testing is justified.

This report looks at some of the common issues and complaints investigated by the Local Government and Social Care Ombudsman concerning people who lack mental capacity and the Deprivation of Liberty Safeguards (DoLS) system. The report includes individual case studies to show the impact on people when things go wrong. It estimates that 20 per cent of the 1,212 adult social care complaints investigated by the Ombudsman in the year 2016/17 concerned mental capacity or DoLS. Common issues included: not completing, or delays in carrying out, mental capacity assessments; poor ‘best interests’ decision making; disagreements with the process and failure to involving families; delay in obtaining DoLS authorisations; and failure to carry out full assessments before applying for DoLS. Drawing on the results of investigations, the report provides good practice points to help social care professionals get it right firs time when working with people who may lack mental capacity. It also provides a list of questions to help councillors scrutinise their own authorities.

This At a glance summary presents an overview of the Mental Capacity Act (MCA) 2005, which is important to health and social care practice.

Explores what mental capacity is and when and how capacity should be assessed.

A social care training video for care staff on the theme of mental capacity. Roger is a man with learning disabilities living in a supported living service. An assessment of his mental capacity to make different financial decisions is being undertaken by a social worker.

This resource describes good practice in the management and implementation of the Deprivation of Liberty Safeguards (DoLS; the Safeguards).

Alex Ruck Keene, Lorraine Currie and Chelle Farnan from the National Mental Capacity Form (NMCF) discuss how the law works in terms of remote assessment and the practicalities during COVID-19.

UA110 record of mental capacity assessment form.