This free course describes the principles and criteria underpinning the assessment of mental capacity and decision making in the UK. The course begins by looking at what mental capacity – and the lack of it – means. You will be introduced to various groups of people who are more likely to lack mental capacity, but you will also learn why it is relevant to everyone. You will look at what can be done to help someone to make a decision themselves and the principles and steps that enable people to judge, fairly, whether someone has capacity or not. You will be introduced to the legislation in the UK and will see how it supports and protects people who may lack capacity. [First Published: 15/12/2016; Updated: 20/01/2020].

This practice guide has been commissioned by the Department of Health to help frontline social and health professionals decide whether an individual they are concerned with may be deprived of their liberty due to the type of care or treatment that they are receiving or the level of restrictive practices that they are subject to. It focuses on the practical application of the legal principles. Part I provides details of the legal framework that governs deprivation of liberty and outlines the central principles of Article 5 European Court of Human Rights (ECHR). It then summarises the key elements of the Cheshire West decision. Part II details the most common settings in which a deprivation of liberty may occur: hospitals; psychiatric care; care homes; supported living services, such a shared lives schemes and extra care housing; Deprivation of liberty at home; and under 18s. For each setting the guidance identifies some of the factors that may point towards there being a deprivation of liberty; suggests scenarios which are very likely to/may/or not amount to a deprivation; and poses a number of questions that professionals can ask themselves when making decisions. The document includes links case law throughout. Part III provides summaries of key legal cases and further information and resources. The guidance is primarily relevant to the position in England and Wales. Quick reference guides covering each individual setting are also available.

The HEE e-LfH Mental Capacity Act e-learning programme (MCA) is made up of 11 e-learning sessions, which cover the following titles: Mental Capacity Act as part of human rights; assessing mental capacity; making decisions; best interests; restraint; deprivation of liberty; relationship between the Mental Capacity Act and the Mental Health Act; Mental Capacity Act and young people aged 16 or 17; research involving people who lack capacity; Mental Capacity Act and adult safeguarding; settling disputes and disagreements. Each e-learning session will take approximately 20 to 30 minutes to complete and is made up of knowledge, case scenarios, short interviews and self-assessment questions to test your knowledge. The resource can be accessed on smart phones, tablets and laptop/desktop devices.

D was a 16-year-old boy who had been diagnosed with ADHD, mild learning disability, Asperger’s syndrome and Tourette’s syndrome. He had previously been detained in a psychiatric unit but was discharged to a residential home. The residential unit was funded by the local authority with his parent’s consent under section 20 of the Children Act 1989. All parties agreed that D was deprived of his liberty. The issue was whether D’s parents were able to consent on his behalf and whether the arrangements were imputable to the State. The local authority argued that the effect of the parents’ consent under section 20 of the Children Act 1989 meant that D’s placement and confinement were not imputable to the state, but this argument was rejected by the court. The local authority also stressed that the outcome of this decision would have significant resource implications for all local authorities but this argument was also rejected.