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1. Definition

The Mental Capacity Act 2005 (MCA) provides a framework to protect and restore power to those who may lack, or have reduced, mental capacity to make certain decisions at particular times. It places the adult at the centre of the decision making process.

‘Whenever the term ‘a person who lacks capacity’ is used, it means a person who lacks capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken.

This reflects the fact that people may lack capacity to make some decisions for themselves, but will have capacity to make other decisions. For example, they may have capacity to make small decisions about everyday issues such as what to wear or what to eat, but lack capacity to make more complex decisions about financial matters.

It also reflects the fact that a person who lacks capacity to make a decision for themselves at a certain time may be able to make that decision at a later date. This may be because they have an illness or condition that means their capacity changes. Alternatively, it may be because at the time the decision needs to be made, they are unconscious or barely conscious whether due to an accident or being under anaesthetic or their ability to make a decision may be affected by the influence of alcohol or drugs.

Finally, it reflects the fact that while some people may always lack capacity to make some types of decisions – for example, due to a condition or severe learning disability that has affected them from birth – others may learn new skills that enable them to gain capacity and make decisions for themselves’ (MCA 2005 Code of Practice: p3).

The MCA legislates in relation to:

• allowing adults to make as many decisions as they can for themselves;
• enabling adults to make advance decisions about whether they would like future medical treatment;
• allowing adults to appoint, in advance of losing mental capacity, another person to make decisions about personal welfare or property on their behalf at a future date;
• allowing decisions concerning personal welfare or property and affairs to be made in the best interests of adults when they have not made any future plans and cannot make a decision at the time;
• ensuring an NHS body or local authority will appoint an independent mental capacity advocate to support someone who cannot make a decision about serious medical treatment, or about hospital, care home or residential accommodation, when there are no family or friends to be consulted (see also Independent Mental Capacity Advocate Service);
• providing protection against legal liability for carers who have honestly and reasonably sought to act in the person’s best interests;
• providing clarity and safeguards around research in relation to those who lack capacity.

The MCA relates to people over the age of 16 years old. However, these policies and procedures apply only to adults over the age of 18 years.

2. Principles of the Mental Capacity Act

The following five principles apply for the purposes of the MCA:

• it must be assumed that a person has mental capacity unless they have been assessed as lacking mental capacity;
• a person should not be treated as unable to make a decision unless all practicable steps to help them do so have been taken without success;
• a person should not be treated as unable to make a decision just because they make a decision that seems to others to be unwise or wrong;
• an act or decision carried out for the person who lacks mental capacity must be done in their best interests;
• before an act or decision is carried out, there must be consideration given to achieving the intended outcome in a way that is less restrictive of the person’s rights and freedoms.

These five principles should inform all actions when working with a person who may lack or have reduced mental capacity and should be evidenced when making decisions or agreeing actions on their behalf.

3. Determining Capacity

As noted in section 2, it must be assumed that an adult has the mental capacity to make their own decisions unless it is established that they lack the capacity to do so. This means that anybody who claims an adult lacks mental capacity should be able to provide evidence in support of this.

They need to demonstrate, on the balance of probabilities, that the adult lacks the mental capacity to make a particular decision, at the time it needs to be made. This means being able to demonstrate it is more likely than not that the person lacks capacity to make the decision in question.

3.1 Two stage test

To help decide if a person lacks capacity, the MCA sets out a two stage test.

Stage 1: The Functioning Test – can the adult make the decision in question?

This involves looking at whether the adult is able to make the required decision.

Practical and appropriate support should be provided to help the adult make the decision for themselves, if required.

An adult is considered unable to make a decision if they cannot:

1. understand information about the decision to be made (known as the ‘relevant information’);
2. keep that information in their mind;
3. use or weigh up that information as part of the decision making process; or
4. communicate their decision (by talking, using sign language or any other means).

There only needs to be evidence in one of these areas, not all of them.

If the adult cannot make the decision in question – even with support – Stage 2 must then be considered.

Stage 2: The Diagnostic Test – is the person unable to make the decision because of an impairment or disturbance in the functioning of their mind or brain?

This requires evidence to show the person has an impairment or disturbance of the mind or brain. Examples include:

• conditions associated with some forms of mental illness;
• dementia;
• significant learning disabilities;
• the long term effects of brain damage;
• physical or medical conditions that cause confusion, drowsiness or loss of consciousness;
• delirium;
• concussion following a head injury; and

• effects of alcohol or drug use.

If a person does not have such an impairment or disturbance of the mind or brain, they will not lack mental capacity under the MCA.

Once the adult has been identified as having an impairment or disturbance in the functioning of the mind or brain, it is important to determine that their inability to make the decision is because of this impairment. This is known as the ‘causative nexus’ (PC and NC v City of York Council [2013] EWCA Civ 478). Only where it can be reasonably said that the person cannot make the decision because of the impairment of their mind, can it be said that they lack mental capacity to make the decision.

Assessors should also consider the case of SS v London Borough of Richmond upon Thames and South West London Clinical Commissioning Group [2021] in which Mr Justice Hayden, Vice President of the Court of Protection highlighted (SS v London Borough of Richmond Upon Thames & Anor [2021] EWCOP 31 (30 April 2021, bailii.org):

I hope Dr N will not think me too pedantic if I make the observation that “patient failed capacity assessment” strikes me as awkwardly expressed. It is not a test that an individual passes or fails, it is an evaluation of whether the presumption of capacity has been rebutted and if so, for what reason.

4. Recording

The two stage test should be used as a framework for recording the assessment of mental capacity, so that the evidence for decision making is clear.

Recording needs to be clear and, where possible, extracts taken from conversations practitioners have had with the adult, to evidence the outcome.

5. Making Decisions on behalf of someone who lacks Capacity

If, having taken all practical steps to support the adult to make their own decision, it is concluded that a decision should be made for them, that decision must be made in that person’s best interests. It must also be considered whether there is another way of making the decision which might not affect the person’s rights and freedom of action as much (known as the ‘least restrictive alternative’ principle). See also Promoting Less Restrictive Practice: Reducing Restrictions Tool for Practitioners (ADASS and LGA).

6.1 Decision makers

Different people can make decisions or act on behalf of someone who lacks mental capacity. The person making the decision is known as the ‘decision maker’, and it is their responsibility to determine what would be in the best interests of the person who lacks capacity.

Determining who the decision maker is depends on the decision and the context, and not on the circumstances of the individual. For most day to day actions or decisions, the decision maker will be the carer most directly involved with the person at the time. Family members and informal carers will be decision makers for actions that they undertake. A care assistant will be the decision maker if the decision is, for instance, about what clothes to put on that morning.

Professionals are the decision makers for actions for which they are responsible. A doctor or other health professional will be the decision maker about someone’s capacity for the treatment they are prescribing, or initiating a care pathway. A nurse will be the decision maker about the treatment or care that they are delivering or administering. A social care professional will be the decision maker about a move into residential care or commissioning a package of care.

In some cases, the same person may make different types of decision for someone who lacks mental capacity. For example, a carer may carry out certain acts in caring for the person on a daily basis, but if they are also an attorney, appointed under a lasting power of attorney, they may also make specific decisions concerning the person’s property and financial affairs or health and welfare.

A decision may also, at times, be made jointly by a number of people. For example, when a care plan for a person who lacks capacity is being developed, different healthcare or social care staff might be involved in making decisions or recommendations about their care package. Alternatively, the decision may be made by one practitioner within the team. A different member of the team may then implement that decision, based on what the team has ascertained to be in the person’s best interests. Practitioners need to ensure that someone is representing the adult, such as an independent mental capacity advocate (IMCA) or a relevant person’s representative (RPR).

In a best interests meeting, the aim is for everyone involved to be in agreement with the decisions made. However, this may not always be possible.

In such situations, it can be useful to involve different people, for example, to chair the meeting and make decisions, who are separate from the lead practitioner working with the adult.

5.2 Lasting power of attorney, court appointed deputy and the Office of the Public Guardian

A lasting power of attorney (LPA) allows an adult to appoint an attorney to act on their behalf if they should lose mental capacity in the future.  LPAs are registered with the Office of the Public Guardian (OPG).

A court appointed deputy is appointed by the Court of Protection. Depending on the terms of their appointment, deputies can take decisions on welfare, healthcare and financial matters as authorised by the Court of Protection, but they are not able to refuse consent to life sustaining treatment. Deputies are only appointed if the Court cannot make a one off decision to resolve the issues. The OPG supervises deputies appointed by the Court and provides information to help the Court make decisions.

5.3 Independent mental capacity advocates

See Independent Mental Capacity Advocate Service chapter

Independent mental capacity advocates (IMCAs) are appointed to support a person who lacks mental capacity but has no one to speak for them. IMCAs have to be involved where decisions are being made about serious medical treatment or a change in the adult’s accommodation where it is provided, or arranged, by the NHS or a local authority.

The IMCA makes representations about the person’s wishes, feelings, beliefs and values, and brings to the attention of the decision maker all relevant factors to the case. IMCA services are provided by organisations that are independent of the NHS and local authorities.

5.4 Forward planning

See Advance Care Planning chapter

Considering the possibility of losing mental capacity and registering lasting power of attorney is usually associated with people getting older. But it is wise to consider such decisions and act on them much earlier in life, in case of unexpected illness or an accident that results in a temporary or permanent loss of mental capacity.

Using an LPA is not limited to circumstances where an adult’s mental capacity is reduced. Due to a physical illness that renders a person (the donor) unable to leave the house for example, an LPA who is registered in relation to property and financial affairs can carry out financial transactions on their behalf and with their permission. In the absence of a registered LPA, the alternative would be to borrow the money which could attract charges or to apply to the Court of Protection.

Although an LPA cannot be used until it has been fully registered with the OPG and confirmation received, they can be registered before the adult loses mental capacity which means that they could be used immediately if it should become necessary.

6. Best Interests

See Best Interests chapter

The MCA sets out a checklist of things to consider when deciding what is in a person’s best interests. When making best interests decisions, practitioners should:

• not make assumptions on the basis of age, appearance, condition or behaviour;
• consider all the relevant circumstances;
• consider whether or when the person will have capacity to make the decision;
• support the person’s participation in any acts or decisions made for them;
• not make a decision about life sustaining treatment ‘motivated by a desire to bring about his (or her) death’;
• consider the person’s expressed wishes and feelings, beliefs and values;
• take into account the views of others with an interest in the person’s welfare, their carers and those appointed to act on their behalf.

7. Excluded Decisions

There are certain decisions which can never be made on behalf of a person who lacks mental capacity to make those specific decisions. This is because they are either so personal to the individual concerned, or they are governed by other legislation. They include the following.

7.1 Decisions concerning family relationships

Nothing in the MCA allows a decision to be made on someone else’s behalf on:

• consenting to marriage or a civil partnership;
• consenting to have sexual relations;
• consenting to a decree of divorce on the basis of two years’ separation;
• consenting to the dissolution of a civil partnership;
• consenting to a child being placed for adoption or the making of an adoption order;
• discharging parental responsibility for a child in matters not relating to the child’s property;
• giving consent under the Human Fertilisation and Embryology Act 1990; or
• decisions around contact with others, including restricting the use of social media, telephone calls and who can visit the adult.

All these types of decisions should be referred to the Court of Protection if the person is believed to lack mental capacity to make these decisions themselves.

7.2 Mental Health Act matters

Where a person who lacks mental capacity to consent is currently detained and being treated under the Mental Health Act 1983, the MCA does not authorise anyone to:

• give them treatment for mental disorder; or
• consent to them being given treatment for mental disorder.

7.3 Voting rights

Nothing allows a decision on voting – at an election for any public office or at a referendum – to be made on behalf of a person who lacks capacity to vote.

7.4 Unlawful killing or assisting suicide

The MCA does not change the law relating to murder, manslaughter or assisting suicide.

8. Further Reading

8.1 Relevant chapters

Deprivation of Liberty Safeguards

Best Interests

Independent Mental Capacity Advocate Service

Assessment

8.2 Relevant information

Mental Capacity Act 2005 Code of Practice

Decision-Making and Mental Capacity (NICE)

Assessment and Recording of Capacity (39 Essex Chambers)

Mental Capacity Toolkit (University of Bournemouth 

Mental Capacity Act (MCA): e-Learning course (SCIE)

Fluctuating Capacity in Context (39 Essex Chambers) 

ePractice

1. Introduction

The Mental Health Act (MHA) is the current law which provides legal powers for the admission, detention and treatment of a person against their will in respect of mental illness. Where a person is detained against their will this is commonly known as ‘being sectioned’.

The MHA is an extensive legislative framework about which this chapter provides an introduction and basic details of the most commonly known and used sections within the adult social care remit.

The MHA1983 was reformed in 2007 which saw a number of key changes to the original Act which placed a larger focus on public protection and risk management. The 2007 amendments were exactly that and the main body of the 1983 Act remains in place, as such the MHA may be referred to as the Mental Health Act 1983 (2007). See Appendix 1: 2007 Amendments to the 1983 Act for information about changes to the original legislation.

2. Who does the Mental Health Act 1983 apply to?

The MHA provides ways of assessing, treating and caring for people who have a serious mental disorder that puts them or other people at risk. It sets out when:

• people with mental disorders can be detained in hospital for assessment or treatment;
• people who are detained can be given treatment for their mental disorder without their consent (it also sets out the safeguards people must get in this situation); and
• people with mental disorders can be made subject to guardianship or after-care, under supervision to protect them or other people.

Most of the MHA does not distinguish between people who have the mental capacity to make decisions and those who do not. Many people covered by the MHA have the capacity to make decisions for themselves.

Decision makers will need to decide whether to use either the MHA or MCA to meet the needs of people with mental health problems who lack capacity to make decisions about their own treatment. Where someone with a mental health disorder is subject to a Community Treatment Order (CTO) or Guardianship under the MHA, and lacks capacity, they may have a Deprivation of Liberty Safeguard in place; otherwise a person cannot be subject to the two frameworks at the same time. See Interface between the Mental Capacity Act 2005 and the Mental Health Act 1983.

3. Parts of the Act

The Mental Health Act 1983 is split into ten parts:

1. The Application of the Act;
2. Compulsory Admission to Hospital and Guardianship;
3. Patients Concerned in Criminal Proceedings or Under Sentence;
4. Consent to Treatment;
5. Treatment of Community Patients not Recalled to Hospital;
6. Mental Health Review Tribunals;
7. Removal and Return of Patients Within the United Kingdom;
8. Management of Property and Affairs of Patients;
9. Miscellaneous Functions of Local Authorities and Secretary of State;
10. Offences; and also
11. Miscellaneous and Supplementary.

These parts are the ones most commonly used and key to adult social care practice:

• Compulsory Admission to Hospital and Guardianship;
• Miscellaneous Functions of Local Authorities and Secretary of State;
• Miscellaneous and Supplementary

Further detail about each section is outlined below.

4. Part 2: Compulsory Admission to Hospital and Guardianship

4.1. Section 2 Admission for Assessment

This allows for:

• a person to be detained in hospital for assessment of their mental health;
• treatment to be forcibly administered as part of the assessment period (excluding use of Electro-Convulsive Therapy – ECT);
• a detention period of up to 28 days, however discharge can be arranged sooner.

Section 2 cannot be renewed. If further detention is required beyond the 28 day period, assessment under section 3 should be considered. In certain cases where there may be issues relating to a person’s nearest relative, Section 2 can be extended by the powers of the Court until such decision regarding the nearest relative are resolved.

4.1.1 Criteria

For a person to be detained under section 2 they must have:

• been assessed by two doctors – one of whom must be section 12 approved. It is preferable that at least one of the doctors involved in the assessment has previous acquaintance with the person being assessed;
• both doctors need to be of the opinion that compulsory admission is required and must complete a medical recommendation;
• there must be no longer than five clear days between each of the medical assessments, for example if an examination is completed on a Monday, the five days are not inclusive of this day (meaning Tuesday to Saturday are clear days therefore Sunday is the last possible day for the second medical examination);
• the Approved Mental Health Professional (AMHP) must be in agreement with the two doctors’ recommendations and have completed a valid application for admission;
• the AMHP must complete the application for admission within 14 days of the latter dated medical recommendation;
• a person’s nearest relative is also able to make an application for admission.

4.1.2 Appeal

Patients have the right to appeal against the detention within the first 14 days.

4.2 Section 3: Admission for treatment

For a person to be detained under section 3 the criteria for section 2 must all be met. Section 3 can be used where a person is well known to mental health services and it is clear what illness is to be treated and therefore no assessment period is required.

Alternatively, it may be used due to the need for continued detention after the 28 day period of section 2.

4.2.1 Provisions

The Act allows the following provisions:

• a person to be detained in hospital for treatment of their mental health. Appropriate medical treatment must be available;
• forcible administration of treatment (excluding use of ECT. Where there is non-compliance with medication this will need to be reviewed by a second opinion appointed doctor (SOAD) after three months.;
• a detention period of up to six months, after which it can be renewed for a further six months and on a 12 monthly basis thereafter.

4.2.2 Appeal

Patients have the right to appeal against the detention within the first six months.

Please also see Section 117 Aftercare.

4.3 Section 4 – Admission for Assessment in case of emergency

4.3.1 Criteria

Section 4 is used in emergency situations where is it deemed not practicable to arrange two doctors and assess under section 2.

Unlike assessment for sections 2 and 3 there needs only to be one doctor involved – preferably one whom previous acquaintance. An AMHP is still required to make an application.

4.3.2 Provisions

The Act allows the following provisions:

• detention period of up to 72 hours following which further assessment by a second doctor should be arranged and the decision made whether to detain under section 2 or to arrange discharge;
• treatment can be refused, however where there is concern regarding capacity to consent, treatment can be provided in the best interests of the individual detained. It can also be provided where it is necessary to prevent harm to themselves or to others.

4.3.3 Appeal

There is no right of appeal against section 4.

4.4 Section 5: Application in respect of a patient already in hospital (holding powers)

The Act:

• provides powers to doctors and nurses to prevent a person from leaving hospital where by doing so there may be a risk posed to the individual themselves or to others as a result of the individuals mental health;
• may be used to prevent informal patients from leaving a mental health ward or prevent a person from leaving a general ward where they may be receiving treatment for a physical condition.

There are two parts to section 5 which are outlined below.

4.4.1 Section 5(2)

This is often referred to as doctor’s holding powers. The provisions are:

• it gives the doctor in charge of the individuals the power to detain for up to 72 hours;
• further assessment by an AMHP and second doctor should be arranged as soon as possible and the decision made whether to detain under a section of the M HA or to arrange discharge;
• section 5(2) cannot be renewed.

4.4.2 Section 5(4)

This is often referred to as nurse’s holding powers. The provisions are:

• it gives certain nurses the power to detain for up to six hours;
• a doctor should be requested to attend as soon as possible;
• section 5(4) ends when the doctor arrives. The doctor must assess if the person can be transferred onto section 5(2) or whether the person can remain on an informal basis;
• section 5(4) cannot be renewed.

4.5 Section 7: Application of Guardianship Order

Guardianship gives someone (usually a local authority social care department) the exclusive right to decide where a person should live. However in doing so they cannot unlawfully deprive the person of their liberty. Where restrictions amount to a deprivation, authorities should seek to apply for a DoLS authorisation to run concurrent with the Guardianship Order (see Deprivation of Liberty Safeguards).

The guardian can also require the person to attend for treatment, work, training or education at specific times and places, and they can demand that a doctor, approved social worker or another relevant person have access to the person wherever they live.

Guardianship can apply whether or not the person has the capacity to make decisions about care and treatment.

It does not give anyone the right to treat the person without their permission or to consent to treatment on their behalf (see also Interface between Mental Capacity Act and Mental Health Act).

4.6 Section 17: Leave of absence from hospital

The Act makes the following provisions:

• the Responsible Clinician (RC) to grant a detained patient leave of absence from hospital;
• leave can be provided as escorted or unescorted and the time allowed is controlled by the RC;
• leave can be used to allow a person to have home leave including overnight stays and can often be useful to trial how a person is likely to function in the community when discharged from hospital.

A person is still a detained patient when section 17 is in place.

4.7 Section 17A: Community Treatment Orders

Community Treatment Orders (CTO’s) are used to support people in the community that have mental health needs and require continued treatment under supervision.

The aim of the community treatment or was to reduce the number of ‘revolving door’ patients who would typically become non-compliant with treatment once discharged from hospital, and as a result experience deterioration in their mental state often resulting in further admission.

The provisions are:

• CTO’s can only be used where a person is detained under section 3, 37, 45A, 47 or 48;
• a CTO allows for conditions to be attached to a person’s discharge;
• any individual considered for a CTO should have a degree of understanding in relation to the conditions attached as they must comply with these conditions in order to avoid recall to hospital;
• CTO timeframes mirror those of Section 3, that is six months, six months, annual;
• an AMHP needs to be in agreement with the proposal of a CTO before it can be enforced.

4.8 Section 26: Nearest Relative

The MHA provides safeguards to those who are detained, one of these being the role of the nearest relative (NR).

The NR is different from next of kin and is identified using the list below;

• husband, wife or civil partner;
• son or daughter;
• father or mother;
• brother or sister;
• grandparent;
• grandchild;
• uncle or aunt;
• niece or nephew.

Determining a person’s NR can at times be complex, however to simplify it whoever appears first in the above list in defaults to the role.

The NR must be over 18 (unless husband, wife or civil partner) and where there are both parties available, for example mother and father, the eldest would fulfil the role.

The NR has the right to request that a MHA assessment is completed; they are able to make an application for detention and can also request that their relative is discharged from hospital.

An identified NR can be displaced by the courts if it is deemed that they are unsuitable. The NR is also able to delegate the role and function.

Part 9: Miscellaneous Functions of Local Authorities and the Secretary of State

5.1 Section 117 Aftercare: Introduction

See also Section 117 Aftercare

Section 117 of the Mental Health Act 1983 (2007) imposes a duty upon local authorities and Integrated Care Boards to provide aftercare services for anybody who has been detained under Sections 3, 37, 45A, 47 or 48 of the Mental Health Act (MHA). This includes patients granted leave of absence under section 17 and patients being discharged on community treatment orders (CTOs). The Care Act 2014 implemented some changes to the MHA (see Section 7, Care Act Amendments to Aftercare under the Mental Health Act 1983).

As Section 117 enforces a duty on the local health authority and adult social care services to provide care to meet eligible needs, Section 117 needs that arise directly because of or from the person’s mental disorder and are likely to prevent a deterioration in their condition and therefore lead to a readmission. If a person has additional social care needs, such as a physical disability, that do not arise because of a mental disorder, the usual social care eligibility criteria under the Care and Support Statutory Guidance would need to be applied to these needs.

If, at any point, it becomes apparent that a person who is be eligible for Section 117 aftercare has been paying for services, they can reclaim these payments as long as with clear evidence is provided of their detention.

6. Part 11: Miscellaneous and Supplementary

6.1 Section 135: Warrant to search and remove to a place of safety

6.1.1 Section 135 (1)

The provisions are:

• professionals have the power of entry to a person’s private dwelling for the purpose of assessment under the MHA;
• for entry to be gained by force if required under the powers of a warrant issued by the county court;
• for a person to be removed to a place of safety for the purpose of assessment or where appropriate, remain in their own home.
• an AMHP, a police officer and a doctor is required to be present for the execution of a 135 (1) warrant.

6.1.2 Section 135 (2)

The provisions are:

• for forcible entry if required to access a person who is liable to be detained under the MHA or who need to be retaken to hospital (for example if they have gone absent without leave from the ward when detained and have returned home and refusing to allow entry);
• a warrant is again required to act out these powers of entry, however an AMHP or doctor is not required to execute the warrant under this section.

6.1.3 Section 136: Removal of mentally disordered persons without a warrant – police powers of detention

The provisions are:

• section 136 is an emergency power which allows police officers to remove a person from a public place to a place of safety for the purpose of further assessment under the MHA where there are concerns that a person may be suffering from mental illness and in need of immediate care and / or control. The timeframes of section 136 were reduced from 72 to 24 hours in December 2017;
• if a person is initially seen by a doctor before the AMHP has coordinated a full assessment and it is deemed that there is no evidence of mental illness, the person must be discharged from the 136 immediately;
• a person can be discharged with or without follow up from services once assessed or may be detained under the MHA.

7. Further Reading

7.1 Relevant chapters

Interface between the Mental Capacity Act 2005 and the Mental Health Act 1983

Section 117 Aftercare

Defining Mental Disorder

Ordinary Residence

7.2 Relevant information

Mental Health Act 1983

Mental Health Act 1983 Code of Practice

Appendix 1: 2007 Amendments to the Mental Health Act 1983

1. Key amendments

The key amendments to the Act were as follows.

The Fundamental Principles – Section 118 of the Act says that the Code of Practice (which was given legal stature as part of the reform) must provide a statement of principles to inform all decision making within the remit of the mental health act.

Chapter 1 of the Code of Practice for England outlines the following guiding principles:

• purpose principle;
• least restriction principle;
• respect principle;
• participation principle;
• effectiveness, efficiency and equity principle.

Section 1: Definition of mental disorder – The definition of mental disorder in Section 1 of the Act was split into 4 classifications; psychopathic disorder, mental illness, mental impairment and severe mental impairment.

The 2007 Act broadened the term of mental disorder as below:

“mental disorder” means any disorder or disability of the mind.

Prior to the changes to the Act there were grounds to detain those with Learning Disability under mental impairment and severe mental impairment. The amendment now makes clear that the disability itself does not meet the criteria for detention unless it is:

“associated with abnormally aggressive or seriously irresponsible conduct on his part”

2. Professional roles

The role of the Approved Social Worker (ASW) was opened up to healthcare professionals including nurses, occupational therapists and psychologists. It was renamed the Approved Mental Health Professional (AMHP).

The role of the Responsible Medical Officer (RMO) became that of the Responsible Clinician (RC).

Supervised Discharge /Community treatment Orders – Section 25A Supervised Discharge of the 1983 Act was abolished other than for those already subject to it and was replaced with the introduction of section 17A Community Treatment Orders (CTO’s).

Introduction of Appropriate Medical Treatment – The 1983 Act stated that treatment had to be likely to be effective upon a person’s condition which allowed for a greater degree of detentions to take place, whereas the Act now concurs that treatment is only to be provided where there is purpose outlining that the purpose of any treatment is to:

“alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations” (section 145).

The definition of medical treatment was also changed itself to outline that medical treatment can be provided in the absence of medical supervision.

Those of 16 and 17 years of age and Parental Responsibility – The 2007 Act introduced the notion that any person aged 16 or 17 who is deemed to have capacity cannot be detained on basis of parental consent – outlined in section 131 MHA.

Appendix 2: The Policing and Crime Act 2017

Further to the 2007 Amendments to the MHA 1983, the introduction of the Policing and Crime Act 2017 has more recently had an impact on the application of the Act. The

Guidance for the implementation of changes to police powers and places of safety provisions in the mental health act 1983 published by the Home Office and Department of Health usefully outlines these changes as below:

• section 136 powers may now be exercised anywhere other than in a private dwelling;
• it is now unlawful to use a police station as a place of safety for anyone under the age of 18 in any circumstances;
• a police station can now only be used as a place of safety for adults in specific circumstances, which are set out in regulations;
• the previous maximum detention period of up to 72 hours has been reduced to 24 hours (unless a doctor certifies that an extension of up to 12 hours is necessary);
• before exercising a section 136 power police officers must, where practicable, consult one of the health professionals listed in section 136(1C), or in regulations made under that provision;
• a person subject to section 135 or 136 can be kept at, as well as removed to, a place of safety. Therefore, where a section 135 warrant has been executed, a person may be kept at their home (if it is a place of safety) for the purposes of an assessment rather than being removed to another place of safety;
• a new search power allows police officers to search persons subject to section 135 or 136 powers for protective purposes.

1. Introduction

If a person has been assessed as lacking capacity, any action taken or any decision made or on behalf of that person, must be made in their best interests. This is the fourth principle of the five principles of the Mental Capacity Act 2005 (MCA) (see Mental Capacity).

The person who has to make the decision is known as the ‘decision maker’. The decision maker is usually the person closest to the decision, that is a clinician for healthcare decisions, social worker for social care decisions and a carer for day to day care decisions.

2. What are ‘Best Interests’?

The law requires a number of factors to be considered when deciding what is in the best interests of a person who lacks capacity. The checklist below details these factors. This list is not exhaustive and the MCA Code of Practice should be referred to for more details.

• It is important not to make assumptions about someone’s best interests merely on the basis of their age, appearance, condition or any aspect of their behaviour.
• The decision maker must consider all the relevant circumstances relating to the decision in question.
• The decision maker must consider whether the person is likely to regain capacity (for example after receiving medical treatment). If they are likely to, can the decision or act wait until then?
• The decision maker must involve the person as fully as possible in the decision that is being made on their behalf.
• If the decision concerns the provision or withdrawal of life sustaining treatment the decision maker must not be motivated by a desire to bring about the person’s death.

The decision maker must in particular consider:

• the person’s past and present wishes and feelings (in particular if these have been written down);
• any beliefs and values of the person (for example religious, cultural or moral) that would be likely to influence the decision in question and any other relevant factors.

As far as possible, the decision maker must consult other people if it is appropriate to do so and take into account their views as to what would be in the best interests of the person lacks mental capacity, especially:

• anyone previously named by the person lacking capacity as someone to be consulted;
• carers, close relatives or close friends or anyone else interested in the person’s welfare;
• any attorney appointed under a Lasting Power of Attorney (LPA);
• any deputy appointed by the Court of Protection to make decisions for the person;
• the Independent Mental Capacity Advocate (IMCA), if appointed (see Independent Mental Capacity Advocate Service chapter).

The decision maker must take the above steps, amongst others, and weigh up the above factors when deciding what decision or course of action is in the person’s best interests.

For decisions about serious medical treatment or certain changes of accommodation and where there is no one who fits into any of the above categories, the decision maker may need to instruct an IMCA.

3. Where there is a Dispute about Best Interests

Family and friends may not always agree about what is in the best interests of an individual. Case records should record any details of disputes, must clearly demonstrate that decisions have been based on all available evidence and have taken into account all the conflicting views. If there is a dispute, the following courses of action can help in determining what is in a person’s best interests:

• involve an advocate who is independent of all the parties involved;
• get a second opinion;
• hold a formal or informal case conference;
• go to mediation;
• as a last resort, an application could be made to the Court of Protection for a ruling.

4. Recording

Comprehensive recording is key in all cases, but particularly in safeguarding adults cases which are likely to be the most complex and present the highest levels of risk. In such cases, full records of best interest decision making should be kept, including:

• how the decision about the person’s best interests was reached;
• the reasons for reaching the decision;
• who was consulted to help decide the best interests;
• what particular factors were taken into account;
• if written requests from person concerned were not followed, why not;
• the content and results of any disputes;
• what has been decided in the person’s best interests and reasons for that decision.

People lacking mental capacity have the same rights as those with capacity to have their outcomes realised. Although it may be challenging, a good best interest decision reflects the wishes, feelings, values and needs of the person.

This can also be included as an outcome measure on the safeguarding adult return forms.

5. Further Reading

5.1 Relevant chapter

Mental Capacity

5.2 Relevant Information

Assessing and Determining Best Interests (39 Essex Chambers)

1. Who does the Mental Health Act 1983 apply to?

The Mental Health Act 1983 (MHA), which was amended in 2007, provides ways of assessing, treating and caring for people who have a serious mental disorder that puts them or other people at risk. It sets out when:

• people with mental disorders can be detained in hospital for assessment or treatment;
• people who are detained can be given treatment for their mental disorder without their consent (it also sets out the safeguards people must get in this situation); and
• people with mental disorders can be made subject to guardianship or aftercare, under supervision to protect them or other people.

Most of the MHA does not distinguish between people who have the mental capacity to make decisions and those who do not. Many people covered by the MHA have the mental capacity to make decisions for themselves.

Decision makers will need to decide whether to use either the MHA or Mental Capacity Act (MCA) to meet the needs of people with mental health problems who lack capacity to make decisions about their own treatment. Where someone with a mental health disorder is subject to a Community Treatment Order (CTO) or Guardianship under the MHA, and lacks capacity, they may have a Deprivation of Liberty Safeguards in place. Otherwise a person cannot be subject to the two frameworks at the same time.

Click here to view flowchart: Deciding whether the MHA and /or MCA can be used.

2. What are the Limits of the Mental Capacity Act?

The MCA provides legal protection for people who are caring for or treating a person who lacks mental capacity. But the principles of the MCA must be followed (see Principles, Mental Capacity) and action can only be taken if it is in the person’s best interests. This applies to care or treatment for physical and mental conditions, and can apply to treatment for people with mental disorders, however serious those disorders are.

The MCA does have its limits, for example a practitioner who is restraining an adult in their care only has protection if the restraint is:

• necessary to protect the person who lacks capacity from harm; and
• in proportion to the likelihood and seriousness of that harm.

The Deprivation of Liberty Safeguards (DoLS) provides safeguards for people who lack the mental capacity specifically to consent to treatment or care in either a hospital or registered care home that amounts to a deprivation of liberty, and detention under the MHA is not appropriate for them at that time. See also Deprivation of Liberty Safeguards chapter.

The MCA also does not allow for treatment to be given if it goes against a valid and applicable advance decision to refuse treatment (see Advance Care Planning chapter).

None of these restrictions apply to treatment for mental disorder given under the MHA – but other restrictions do.

3. When can a Person be Detained under the MHA?

A person can be detained for assessment under section 2 MHA if both of the following criteria apply:

• the person is suffering from a mental disorder of a nature or degree which warrants their detention in hospital for assessment (or for assessment followed by treatment) for at least a limited period; and
• the person ought to be so detained in the interests of their own health or safety or with a view to the protection of others.

A person can be detained for treatment under section 3 MHA if all the following criteria apply:

• the person is suffering from a mental disorder of a nature or degree which makes it appropriate for them to receive medical treatment in hospital;
• it is necessary for the health or safety of the person or for the protection of other persons that they should receive such treatment and it cannot be provided unless the patient is detained under this section; and
• appropriate medical treatment is available.

Decision makers should consider using the MHA if they are not sure it will be possible, or sufficient, to rely on the MCA. They do not have to ask the Court of Protection to rule that the MCA does not apply before using the MHA.

If a clinician believes that they can safely assess or treat a person under the MCA, they do not need to consider using the MHA. In this situation, it would be difficult to meet the requirements of the MHA anyway. Certain serious treatments under the MCA, such as non-therapeutic sterilisation or withdrawal of artificial hydration or ventilation, must be referred to the Court of Protection for a final decision. Furthermore, a person should not be treated for a mental disorder or on a psychiatric ward under DoLS if they are likely to be treatable under the MHA.

A person cannot be treated under the MHA unless they meet the relevant criteria for being detained.

4. How does the MCA apply to a Patient subject to Guardianship under the MHA?

Guardianship gives someone (usually a local authority social care department) the exclusive right to decide where a person should live – but in doing so they cannot deprive the person of their liberty (see Deprivation of Liberty Safeguards). The guardian can also require the person to attend for treatment, work, training or education at specific times and places, and they can demand that a doctor, approved social worker or another relevant person have access to the person wherever they live. Guardianship can apply whether or not the person has the mental capacity to make decisions about care and treatment. It does not give anyone the right to treat the person without their permission or to consent to treatment on their behalf.

Decision makers must never consider guardianship as a way to avoid applying the MCA.

5. Community Treatment Orders

A Community Treatment Order (CTO) is used where it is necessary for the patient’s health or safety or for the protection of others to continue to receive treatment after their discharge from hospital. It seeks to prevent the ‘revolving door’ scenario and the harm which could arise from relapse.

A key feature of the CTO framework is that it is suitable only where there is no reason to think that the patient will need further treatment as a detained in-patient for the time being, but where the responsible clinician needs to be able to recall the patient to hospital if necessary.

5.1 Deprivation of liberty while on a CTO, leave or subject to guardianship

Patients who are on a CTO or on leave, and who lack capacity to consent to the arrangements required for their care or treatment, may occasionally need to be detained for further care or treatment for their mental disorder in circumstances in which recall to hospital for this purpose is not considered necessary. They might also need to be admitted to a care home or hospital because of physical health problems.

If the person is to be detained in a registered care home, a DoLS authorisation must be obtained. A deprivation of liberty can exist alongside a CTO or leave of absence, as long as there is no conflict with the conditions of the CTO or leave set by the patient’s responsible clinician.

If the person is to be detained in a hospital for further treatment for mental disorder (whether or not they will also receive treatment for physical health problems), they should be recalled so they can be treated under the MHA. The MCA cannot be used to authorise the deprivation of their liberty.

6. How does the Mental Capacity Act affect People covered by the Mental Health Act?

There is no reason to assume a person lacks mental capacity to make their own decisions just because they are subject under the MHA to:

• detention;
• guardianship; or
• after-care under supervision.

People who lack mental capacity to make specific decisions are still protected by the MCA even if they are subject to the MHA (this includes people who are subject to the MHA as a result of court proceedings). But there are four important exceptions:

• if a person is liable to be detained under the MHA, decision makers cannot normally rely on the MCA to give mental health treatment or make decisions about that treatment on someone’s behalf;
• if a person can be given mental health treatment without their consent because they are liable to be detained under the MHA, they can also be given mental health treatment that goes against an advance decision to refuse treatment;
• if a person is subject to guardianship, the guardian has the exclusive right to take certain decisions, including where the person is to live; and
• Independent Mental Capacity Advocates (IMCAs) do not have to be involved in decisions about serious medical treatment or accommodation, if the decisions are made under the MHA (see Independent Mental Capacity Advocacy Service chapter).

7. What are the Implications for People who need Treatment for a Mental Disorder?

Under the MHA, subject to certain conditions, doctors can give treatment for mental disorders to detained patients without their consent – whether or not they have the mental capacity to give that consent.

Where Part 4 of the MHA applies, the MCA cannot be used to give medical treatment for a mental disorder to patients who lack mental capacity to consent. Nor can anyone else, like an attorney or a deputy, use the MCA to give consent for that treatment. This is because Part 4 of the MHA already allows clinicians, if they comply with the relevant rules, to give patients medical treatment for mental disorder even though they lack the capacity to consent. In this context, medical treatment includes nursing and care, habilitation and rehabilitation under medical supervision.

However, clinicians treating people for mental disorder under the MHA cannot simply ignore a person’s mental capacity to consent to treatment. As a matter of good practice (and in some cases in order to comply with the MHA) they will always need to assess and record:

• whether patients have mental capacity to consent to treatment, and
• if so, whether they have consented to or refused that treatment.

8. How does the Mental Health Act affect Advance Decisions to Refuse Treatment?

See also Advance Decisions to Refuse Treatment, Advance Care Planning chapter

The MHA does not affect a person’s advance decision to refuse treatment, unless the person can be treated for mental disorder without their consent. In this situation healthcare staff can treat patients for their mental disorder, even if they have made an advance decision to refuse such treatment.

But even then healthcare staff must consider a valid and applicable advance decision to refuse treatment as they would a decision made by a person with capacity at the time they are asked to consent to treatment. For example, they should consider whether they could use a different type of treatment which the patient has not refused in advance. If healthcare staff do not follow an advance decision, they should record this in the patient’s notes with reasons.

Even if a patient is being treated without their consent under Part 4 of the MHA, an advance decision to refuse other forms of treatment is still valid. Being subject to guardianship or aftercare under supervision does not affect an advance decision in any way.

9. Does the MHA affect the Duties of Attorneys and Deputies?

In general, the MHA does not affect the powers of attorneys and deputies. But there are two exceptions:

• they will not be able to give consent on a patient’s behalf for treatment under Part 4 of the MHA, where the patient is liable to be detained under the Act; and
• they will not be able to take decisions:
  • about where a person subject to guardianship should live, or
  • that conflict with decisions that a guardian has a legal right to make.

Being subject to the MHA does not stop patients creating new Lasting Powers of Attorney (if they have the mental capacity to do so), or does it stop the Court of Protection from appointing a deputy for them.

Attorneys and deputies are able to exercise patients’ rights under the MHA, if they have the relevant authority. In particular, some personal health and welfare attorneys and deputies may be able to apply to the First Tier Tribunal for the patient’s discharge from detention, guardianship or aftercare under supervision.

The MHA also gives various rights to a patient’s nearest relative (see MCA Code of Practice for further information).

Clinicians and others involved in the assessment or treatment of patients under the MHA should try to find out if the person has an attorney or deputy.

10. Does the MHA affect when Independent Mental Capacity Advocates must be instructed?

10.1 Independent Mental Capacity Advocates

See also Independent Mental Capacity Advocacy Service chapter

There is no duty to instruct an IMCA for decisions about serious medical treatment which is being provided under the MHA. Nor is there a duty to do so in respect of a move into accommodation, or a change of accommodation, if the person is required to live there because of an obligation under the MHA.

However, the rules for instructing an IMCA for patients subject to the MHA who may need serious medical treatment not related to their mental disorder are the same as for any other patient.

The duty to instruct an IMCA would also apply if accommodation is being planned as part of the aftercare under section 117 of the MHA following the person’s discharge (see 117 Aftercare chapter).

10.2 Independent Mental Health Advocates

Independent mental health advocacy services provide an additional safeguard for patients who are subject to the MHA. Independent Mental Health Advocates (IMHAs) are specialist advocates who are trained to work within the framework of the Act and enable patients to participate in decision-making, for example by encouraging them to express their views and supporting them to communicate their views. IMHAs should be independent of any person who has been professionally involved in the patient’s medical treatment.

IMHA services do not replace any other advocacy and support services that are available to patients, such as independent mental capacity advocates (IMCAs) or representatives for patients who lack mental capacity, and should work alongside these services.

11. Further Reading

11.1 Relevant chapters

Mental Capacity

Deprivation of Liberty Safeguards

11.2 Relevant information

Mental Capacity Act 2005 Code of Practice (2007)

Mental Health Act 1983: Code of Practice (2015)

1. Introduction: What is Section 117 Aftercare?

The Mental Health Act 1983 Code of Practice (chapter 33) outlines how section 117 of the Act requires Integrated Care Boards (ICBs – formerly known as Clinical Commissioning Groups) and local authorities, working with voluntary agencies, to provide or arrange for the provision of aftercare to patients detained in hospital for treatment under:

• section 3 – detained in hospital for treatment;
• section 37 or 45A – ordered to go to hospital for treatment by a court;
• section 47 or 48 – transferred from prison to hospital under sections of the Act.

This includes patients given leave of absence under section 17 and patients going on community treatment orders (CTOs). It applies to people of all ages, including children and young people.

2. Key Points about Section 117 Aftercare Services

(Click on image to enlarge it)

Aftercare services aim to meet a need arising from or related to the patient’s mental disorder and reduce the risk of a deterioration of their mental condition (and, accordingly, reducing the risk of them needing to be readmitted to hospital for treatment). Their aim is to maintain patients in the community, with as few restrictions as necessary, wherever possible.

ICBs and local authorities should interpret the definition of aftercare services broadly. For example, aftercare can include healthcare, social care and employment services, supported accommodation and services to meet the person’s wider social, cultural and spiritual needs – if these services meet a need that arises directly from or is related to their particular mental disorder, and help to reduce the risk of a deterioration in their mental condition.

Aftercare is a vital component in patients’ overall treatment and care. As well as meeting their immediate needs for health and social care, aftercare aims to support them in regaining or enhancing their skills, or learning new skills, to cope with life outside hospital (Mental Health Act 1983 Code of Practice).

2.1 Community treatment orders

The duty to provide aftercare services continues as long as the patient is in need of such services. In the case of a patient on a CTO, aftercare must be provided for the whole time they are on the CTO, but this does not mean that their need for aftercare will stop as soon as they are no longer on a CTO.

2.2 Deprivation of Liberty Safeguards

See Mental Capacity Deprivation of Liberty Safeguards chapter

The Deprivation of Liberty Safeguards Code of Practice highlights that safeguards cannot apply to people while they are detained in hospital under the Mental Health Act 1983 (MHA). The safeguards can, however, apply to a person who has previously been detained in hospital under the MHA.

Therefore, for those who are assessed as eligible for section 117 aftercare funding, and their needs are met in a care home or hospital (for physical treatment), they may be subject to restrictions that deprive them of their liberty. Deprivation of Liberty Safeguards (DoLS) can be used for any patient who is funded for their accommodation, care, and treatment under section 117.

There are some occasions where DoLS can be used together with the MHA, and these are referred to as ‘interfaces’ between the legislations, in which five test cases are applied to help determine eligibility. See Interface between the Mental Capacity Act 2005 and the Mental Health Act 1983 (amended 2007) chapter.

2.3 Ordinary residence

See Liverpool City Region Ordinary Residence Practice Guidance chapter

A key consideration when establishing a patient’s eligibility for section 117 aftercare funding is ordinary residence. Section 117(3) of the Act states the ICB, or local Health Board, and the local authority are responsible for funding aftercare in the following circumstances:

1. if, immediately before being detained, the person was ordinarily resident in England (for the area in England in which they were ordinarily resident);
2. if, immediately before being detained, the person was ordinarily resident in Wales, for the area in Wales in which they ordinarily resident; or
3. in any other case for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which they were detained.

2.3.1 Ordinary residence disputes

The issue of ordinary residence can occur frequently as a reason for disagreement when health and social care services are planning safe discharges. Who Pays? NHS England guidance states that the original ICB remains responsible for the health part of a person’s section 117 aftercare funding once they have been discharged into the community.

The guidance also indicates the definition of ordinary residence must be considered alongside its interpretation under the Care Act 2014, where Regulation 3 must be considered. This includes:

Firstly, determining who the ‘lead authority’ is.  The regulations states this is the local authority which:

1. is meeting the needs of the adult or carer to whom the dispute relates at the date on which the dispute starts; or
2. if no local authority is meeting those needs at that date, is required to do so by regulation 2(3);

If it is unclear who the lead authority is, this is decided by considering section 2 of regulation 3:

1. the local authority in whose area the adult needing care is living; or
2. if the adult needing care is not living in the area of any local authority, the local authority in whose area that adult is present, must, until the dispute is resolved, carry out the duties under Part 1 of the Act for the adult or carer, as if the adult needing care was ordinarily resident in its area.

The guidance states:

By virtue of regulation 3(7) of the Care and Support (Disputes between Local Authorities) Regulations 2014/2829 disputes must still be referred to the Secretary of State if the local authorities in dispute cannot resolve the dispute within 4 months of the date on which it arose. On receipt of a referral, DHSC will consider, on a case-by-case basis whether the case raises issues similar to the ‘Worcestershire case‘ and, depending on that consideration, how to treat that referral.

2.3.2 Dispute resolution map

(Click on image to enlarge it)

3. Planning Aftercare

The Mental Health Act 1983 Code of Practice states that although the duty to provide aftercare begins when the patient leaves hospital, the planning of aftercare needs to start as soon as the patient is admitted to hospital. ICBs and local authorities should take reasonable steps, in consultation with the care programme approach (CPA) care co-ordinator and other members of the multi-disciplinary team, to identify appropriate aftercare services for patients in good time for their eventual discharge from hospital or prison.

The duty to provide section 117 aftercare services to a person is triggered by the hospital providing them with care and treatment. If the Responsible Clinician (RC) is considering discharge, they should consider whether the patients aftercare needs have been identified and addressed. This would also apply in cases where the RC is granting extended s17 leave.

If the patient is having either a Hospital Managers Hearing or a Mental Health Tribunal, the ICB and local authority must be notified, as they will be expected to provide information as to what aftercare arrangements could be made available.

Aftercare for all patients admitted to hospital for treatment for mental disorder should be planned within the framework of the CPA. The CPA is an overarching system for coordinating the care of people with mental disorders.

3.1 Community Mental Health Framework for Adults and Older Adults

The Community Mental Health Framework for Adults and Older Adults sets out that people with mental health problems will be able to:

• access mental health care where and when they need it, and be able to move through the system easily, so that people who need intensive input receive it in the appropriate place, rather than face being discharged to no support;
• manage their condition or move towards their individual recovery on their own terms, surrounded by their families, carers and social networks, and supported in their local community;
• contribute to and be participants in the communities that support them, to whatever extent is comfortable to them.

Every person who requires support, care and treatment in the community should have a co-produced and personalised care plan that considers all of their needs, as well as their rights, under the Care Act and section 117 of the MHA when required.

3.2 Care planning

The level of planning and coordination of care will vary, depending on how complex the person’s needs are. For people with more complex problems, who may require interventions from a number of different professionals, one person should have responsibility for coordinating care and treatment. This coordination role can be provided by workers from different professional backgrounds.

The care plan will include timescales for review, which should be discussed and agreed with the person and those involved in their care from the start. Digital technologies can be used to manage plans, and to allow users to manage their care or record advance choices.

Part of everyone’s role is to work with their community. Local authorities have developed community strengths-based approaches and the core skills of social workers include identifying and connecting people to their social networks and communities. Community connectors / social prescribing link workers must work closely with the all the community services and the local voluntary, community and social enterprise sector. The key functions of this role are to be familiar with the local resources and assets available in the community, vary the support provided, based on needs, and assess a person’s ability and motivation to engage with certain community activities.

The aftercare plan must reflect the needs of the patient and it is important to consider who needs to be involved, in addition to patients themselves. Taking the patient’s views into account, this may include:

• the patient;
• the nearest relative;
• any carer who will be involved in looking after them outside hospital;
• any attorney or deputy;
• an independent mental health advocate;
• an independent mental capacity advocate;
• any other representative nominated by the patient;
• the GP;
• the responsible clinician;
• a psychologist, community mental health nurse and other members of the community team;
• nurses and other professionals involved;
• an employment expert, if employment is an issue;
• a representative of housing authorities;
• in the case of a transferred prisoner, the probation service;
• a representative of any relevant voluntary, community, faith and social enterprise agency;
• a person to who the local authority is considering making direct payments for the patient.

Care planning requires a thorough assessment of the patient’s needs and wishes. It is likely to involve consideration of:

• the patient’s continuing mental healthcare, whether in the community or on an outpatient basis;
• their psychological needs and, where appropriate, their carers;
• their physical healthcare;
• their daytime activities or employment;
• appropriate accommodation;
• their identified risks and safety issues;
• any specific needs arising from, for example co-existing physical disability, sensory impairment, learning disability or autistic spectrum disorder;
• any specific needs arising from drug, alcohol or substance misuse (if relevant);
• any parenting or caring needs;
• social, cultural or spiritual needs;
• counselling and personal support;
• assistance in welfare rights and managing finances;
• involvement of authorities and agencies in a different area, if the patient is not going to live locally;
• the involvement of other agencies, for example the probation service or voluntary organisations (if relevant);
• for a restricted patient, the conditions which the Secretary of State for Justice or the first-tier Tribunal has – or is likely to – impose on their conditional discharge; and
• contingency plans (should the patient’s mental health deteriorate) and crisis contact details.

Professionals with specialist expertise should also be involved in care planning for people with autistic spectrum disorders or learning disabilities.

It is important that those who are involved can take decisions regarding their own involvement and, as far as possible, that of their organisation. If approval for plans needs to be obtained from more senior levels, it is important that this causes no delay to the implementation of the care plan.

If accommodation is to be offered as part of the aftercare plan to patients who are offenders, the circumstances of any victim of the patient’s offence and their families should be taken into account when deciding where the accommodation should be offered. Where the patient is to live may be one of the conditions imposed by the Secretary of State for Justice or the Tribunal when conditionally discharging a restricted patient (see Mental Health Act 1983 Code of Practice).

4. Funding Section 117 Aftercare

Section 117 aftercare services are free of charge to all relevant persons. The amount awarded by the local authority must be the amount it costs the local authority to meet the person’s needs. In establishing the ‘cost to the local authority’, consideration should be given to local market intelligence and costs of relevant local quality care and support provision to ensure that the personal budget reflects local market conditions and that appropriate care that meets needs can be obtained for the amount specified (see Personal Budgets chapter).

If, at any point, it becomes clear that a person who is be eligible for section 117 aftercare has been paying for services, they can reclaim these payments as long as clear evidence is provided of their detention in hospital or prison.

Direct payments can be made in respect of aftercare to the patient or, where the patient is a child or a person who lacks capacity, to a representative who consents to the making of direct payments in respect of the patient (see Direct Payments chapter). A payment can only be made if valid consent has been given. In determining whether a direct payment should be made, funding authorities must have regard to whether it is appropriate for a person with that person’s condition, taking into account the impact of that condition on the person’s life and whether a direct payment represents value for money. A payment can also, in certain circumstances, be made to a nominated person.

The relevant social services authority for the funding of section 117 is usually that where the person was ordinarily resident prior to their first detention on a qualifying section for s117, unless that local authority with the relevant ICB with good reason ended the s117 entitlement.

It is the responsibility of the local authority to hold a register of all those subject to section 117 within the authority. The local authority and ICB should maintain a record of whom they provide aftercare services for in their area and out of county.

5. Reviewing and Ending Section 117 Aftercare

Aftercare lasts as long as there is a need to be met and must remain in place until such a time that both the ICB and the local authority are satisfied that the patient no longer has needs for aftercare services. Care and treatment needs can be reviewed periodically by the ICB and the local authority, and aftercare can be altered as the person’s needs change.

Section 117 aftercare cannot be withdrawn without reassessing the person’s needs. The person must be fully involved in any decision-making process in relation to the ending of aftercare, including, if appropriate consultation with relevant carer/s and advocate/s.

Aftercare cannot be withdrawn simply because someone has been discharged from specialist mental health services, or an certain period has passed, or they have been returned to hospital and / or further detained under MHA and / or Mental Capacity Act (MCA).

If aftercare services area withdrawn, they can be reinstated if it becomes obvious that withdrawing the services was premature or unlawful.

The patient is entitled to refuse aftercare services and cannot be forced to accept them. It is important to note that just because someone may refuse services, this does not automatically mean that there is not a need, and therefore does not automatically mean that aftercare services should be withdrawn.

It may well be that whilst receiving s117 aftercare for a mental disorder, a person requires services for a separate physical or mental disorder, care for these would need to be addressed by a separate care plan under the Care Act.

10. Further Reading

10.1 Relevant chapter

Defining Mental Disorder

6.2 Relevant information

Discharge from Mental Health Inpatient Settings (DHSC)

Ombudsmen Release Joint Guidance to Tackle Common Mistakes in Aftercare of Mental Health In-patients, LGSCO)

Coexisting severe mental illness and substance misuse: community health and social care services (NICE)

Transition between inpatient mental health and community and care home settings (NICE)

Appendix 1: Case Law – Ceasing to be Detained and on Leaving Hospital

In R (on the application of CXF (by his mother, his litigation friend)) v Central Bedfordshire Council [2018] EWCA Civ 2852, the Court considered whether:

• the public body’s duty to provide after-care services to a detained patient extended to the funding of cost of visits of patient’s mother.
• Whether mother’s expenses could be recovered as provision of after-care services.
• Whether patient had left hospital and ceased to be detained on escorted day trips.

The facts

1. The claimant had been diagnosed with autistic spectrum disorder, severe and profound learning disabilities, speech and language impairment and attention deficit hyperactivity disorder.
2. From  June 2016 he had been detained as a patient for purposes of treatment under section 3 of the MHA 1983. Because of the limited number of specialist residential placements at which suitable treatment could be provided, he was detained at an institution in Norfolk some 120 miles from his parental home in Bedfordshire.
3. Under section 17 MHA 1983 his clinician granted him a daily leave of absence to go on bus trips which could take place up to three times a day. Once a week his mother would make the 240 mile round trip to visit him and would go with him on some of these bus trips and help engage in other activities such as shopping, walks on beaches and visits to favourite museums.
4. It was accepted by the court that these visits by the mother and the contact with her were therapeutically beneficial to him.
5. The claimant argued that the expenses should be reimbursed under section 117 MHA 1983 which imposed a duty to provide ‘aftercare’ services to persons who were detained under the MHA and then ‘cease to be detained and … leave hospital.’

Decision

1. The judge at first instance rejected the claim taking the view that neither the local authority nor the CCG were required to meet the mother’s travelling expenses. The judge considered that it was clear that the claimant remained at all times detained under the Act and had not left hospital even when he was enjoying a leave of absence under s 17.
2. The appeal was dismissed and It was held:
3. The claimant was still ‘detained’ in hospital for the purposes of s 117 MHA 1983 despite the grant of temporary leave of absence from time to time under s 17 MHA 1983.
4. It was not, in the court’s view, realistic to suggest that the claimant had left hospital within the terms of s117 MHA 1983. The purpose of s117 was to arrange for the provision of services to a person who had been but was not currently being provided with treatment as a hospital patient.
5. That purpose was only capable of being fulfilled if the person was not currently admitted to a hospital at which they were receiving treatment, which was not the case here.
6. It was not necessary for the patient to have been discharged for the section to apply. Each return for a supervised trip did not amount to a readmission. The trips were part of the hospital treatment and did not constitute aftercare services to which the section applied.
7. The claimant had not left hospital in the meaning of the section on these escorted day trips. Therefore, no expenses could be claimed under section 117 of MHA

Appendix 2: Rules in Relation to CTO Patients in the Community

There are two requirements for CTO patients in the community to be given medication for mental disorder. These are:

• the usual authority: what would be required to give a patient medication if they were not subject to the MHA, that is:
  • the patient’s consent if the patient has capacity; or
  • in the patient’s best interest if the patient lacks capacity, but only if the patient does not resist or it is given with the authority of a person with a lasting power of attorney for health and welfare decisions
• a certificate: the Part 4A certificate is signed by the Responsible Clinician (or Approved Clinician with responsibility for medication) if the patient has capacity and is consenting; the certificate is signed by a SOAD (Second opinion appointed doctor) if the patient lacks capacity.

CTO patients require a certificate.

The Supreme Court has held in Welsh Ministers v PJ [2018] UKSC 66 that there is no power to impose conditions on a CTO which has the effect of depriving a patient of his liberty. Hence if a person is subject to a CTO and a deprivation of liberty (DOL) the Court of Protection needs to authorise the DOL.

1. Introduction

Mental health and mental wellbeing can have different meanings to each individual. If a person feels well they have good mental health they will be able to cope well with day to day life, make the most of their potential and partake fully in social, family, community and work related activity.

When a person does not feel that they are in a state of good mental health, it can affect their daily activity and their perception on life, so daily life, work and socialising with family, friends, colleagues and the wider community becomes difficult.

2. Mental Health Act 1983

In legal terms, the Mental Health Act 1983 (amended 2007) does not use the expression mental health, but refers to mental disorder.

2.1 Amendments to the Act

The amendments of the MHA in 2007 simplified the previous criteria and outlined mental disorder to be ‘any disorder or disability of the mind’.

Whist mental disorder is now classified as such, a diagnosis of a learning disability does not count for detention or treatment under the Act unless it is ‘associated with abnormally aggressive or seriously irresponsible conduct.’

People with a learning disability are considered under the MHA only if they exhibit behaviour that is ‘abnormally aggressive or seriously irresponsible’. A  person cannot be detained under the Act purely as a result of their learning disability alone.

Amendments to the Act also mean that people with personality disorders who used not to be detainable under the Act (because their disorders did not result in ‘abnormally aggressive or seriously irresponsible conduct on the part of the person concerned’) can now be detained.

There is still an exclusion that relates to a dependence on drink or drugs which means a person cannot be detained under the MHA 1983 solely for such a dependency, but they can be detained if it arises because of or from a mental disorder.

Chapter 2 of the Code of Practice to the MHA 1983 (2007) explains in further detail what illnesses may be considered under the Act and also references personality disorders and the MHA.

3. Further Reading

3.1 Relevant chapters

Section 117 Aftercare

Interface between the Mental Capacity Act 2005 and the Mental Health Act 1983

3.2 Relevant information

Mental Health Act 1983 Code of Practice 2007 (amended 2015)

Guidance for the Implementation of Changes to Police Powers and Places of Safety Provisions in the Mental Health Act 1983 (Department of Health and Social Care and the Home Office) 

1. Introduction

The Independent Mental Capacity Advocate (IMCA) was introduced by the Mental Capacity Act 2005 (MCA). The Act gives some people who lack capacity a right to receive support from an IMCA.

The local authority has a duty to make sure that IMCAs are available to represent people who lack capacity to make specific decisions, so staff will need to know when an IMCA must be involved (see Mental Capacity).

IMCAs are independent and generally work for advocacy providers who are not part of a local authority or the NHS.

2. Eligibility

2.1 Independent Mental Capacity Advocates

The majority of adults who access the IMCA service are people with learning disabilities, older people with dementia, people who have an acquired brain injury or people with mental health problems and / or are affected by drug or alcohol use.

IMCAs also act when people have a temporary lack of capacity because they are unconscious or barely conscious whether due to an accident, being under anaesthetic or as a result of other conditions.

A person’s capacity may vary over time or may depend on the type of decision that needs to be made.

Many adults have significant barriers to communication and are unable to instruct the advocate themselves. In addition, many people using the service will be unable to express a view about the proposed decision.

The IMCA service is provided for any person aged 16 years or older, who has no one able to support and represent them, and who lacks capacity to make a decision about either:

• a long-term care move;
• serious medical treatment;
• safeguarding adult procedures; or
• a care and support plan review.

Such a person will have a condition that is affecting their ability to make decisions.

IMCAs should be available to people who are in prison, in hostels or homeless and who lack capacity to make decisions about serious medical treatment or long term accommodation.

Many people who qualify for advocacy under the Care Act will also qualify for advocacy under the MCA. The same advocate can provide support as an advocate under the Care Act and under the MCA. This is to enable the person to receive seamless advocacy so that they don’t have to repeat their story. Whichever legislation the advocate is acting under, they should meet the appropriate requirements for an advocate under that legislation.

Both the Care Act and the MCA recognise the same areas of difficulty, and both require a person with these difficulties to be supported and represented, either by family or friends, or by an independent advocate or independent mental capacity advocate in order to communicate their views, wishes and feelings.

People who qualify for an IMCA in relation to the care planning and care review – as that planning may result in an eligible change of accommodation decision – in nearly all cases will also qualify for independent advocacy under the Care Act. The provisions of the Care Act are however wider and apply to care planning irrespective of whether it may result in a change of accommodation decision. People for whom there is a power to instruct an IMCA in relation to care review will (in nearly all cases) also qualify for independent advocacy under the Care Act. The Care Act however creates a duty rather than a power in relation to advocacy and care reviews (see Section 3, The Care Act and the Mental Capacity Act).

2.2 Independent Mental Health Advocates

Under the Mental Health Act 1983 (MHA) people, known as ‘qualifying patients’, are entitled to the help and support from an Independent Mental Health Advocate (IMHA).

Independent advocacy under the duty flowing from the Care Act is similar in many ways to independent advocacy under the MHA. Regulations have been designed to enable independent advocates to be able to carry out both roles. For both:

• the advocate’s role is to support and represent people;
• the advocate’s role is primarily to work with people who do not have anyone appropriate to support and represent them;
• the advocates require a similar skill set;
• regulations about the appointment and training of advocates are similar;
• local authorities are under a duty to consider representations made by both independent advocates and IMHAs;
• advocates will need to be well known and accessible;
• advocates may challenge local authority decisions.

3. The Care Act and the Mental Capacity Act

3.1 Advocacy duties under the Care Act

The duty to provide independent advocacy is to provide support to:

• people who have capacity but who have substantial difficulty in being involved in the care and support ‘processes’;
• people in relation to their assessment and / or care and support planning regardless of whether a change of accommodation is being considered for the person;
• people in relation to the review of a care and / or support plan;
• people in relation to safeguarding processes (though IMCAs may be involved if the authority has exercised its discretionary power under the MCA and appointed an IMCA if protective measures are being proposed for a person who lacks capacity, at the time to make the relevant decisions or understand their consequences);
• carers who have substantial difficulty in engaging, whether or not they have capacity;
• people for whom there is someone who is appropriate to consult for the purpose of best interests decisions under the Mental Capacity Act, but who is not able and / or willing to facilitate the person’s involvement in the local authority process;
• adults who are subject to a safeguarding enquiry or safeguarding adult review (see Safeguarding Procedures for Responding in Individual Cases and Section 5, Safeguarding Adults Reviews, Safeguarding Adults Boards.

3.2 Care Act and Mental Capacity Act

A person may be entitled to an advocate under the Care Act and then, as the process continues it may be identified that there is a duty to provide an advocate (IMCA) under the MCA. This will occur for example when during the process of assessment or care and support planning it is identified that a decision needs to be taken about the person’s long term accommodation. It would be unhelpful to the individual and to the local authority for a new advocate to be appointed at that stage.

It would be better that the advocate who is appointed in the first instance is qualified to act under the MCA (as IMCAs) and the Care Act and that the commissioning arrangements enable this to occur.

4. Role of the IMCA

The IMCA should go to meetings on the adult’s behalf and examine proposed decisions to make sure that:

• all options have been considered;
• where the adult’s own preferences and dislikes can be identified, these are taken into account;
• no particular agendas are being pursued; and
• the person’s civil, human and welfare rights are being respected.

The IMCA should not offer their own opinion or make the decision.

They should be experienced at working with people who have difficulties with communication. They should always attempt to get to know the adult’s preferred method of communication and spends time finding out if a person is able to express a view and how they communicate.

5. Safeguarding Adult Cases and Care and Support Plan Reviews

When people meet the IMCA criteria, the local authority and the NHS have a duty to instruct an IMCA for changes in accommodation and serious medical treatment decisions.

For safeguarding adult cases and care and support plan reviews, the local authority and the NHS have powers to appoint an IMCA where they consider the appointment would be of particular benefit to the person concerned.

Local authorities in England should have a policy on how IMCAs will be involved in care and support plan reviews and safeguarding adult procedures.

The local authority and the NHS have powers to instruct an IMCA to support and represent a person who lacks capacity where:

• it is alleged the person is or has been abused or neglected by another person; or
• it is alleged the person is abusing or has abused another person

A responsible body can instruct an IMCA to support and represent a person who lacks capacity when:

• they have arranged accommodation for that person;
• they aim to review the arrangements (as part of a care plan or otherwise); or
• there are no family or friends whom it would be appropriate to consult.

6. Referrals and the Referral Process

Any adult who meets the following criteria must be referred to the IMCA service.

• Is a decision being made about serious medical treatment or a change of accommodation; or a care and support plan review or safeguarding adult procedures?
• Does the person lack capacity to make this particular decision?
• Is the person over 16 years old?
• Is there nobody (other than paid staff providing care or professionals) whom the decision maker considers willing and able to be consulted about the decision? (This does not apply to safeguarding adult cases.)

NHS bodies must instruct and take into account information from an IMCA where decisions are proposed about serious medical treatment, where the person lacks capacity to make the decision and there are no family or friends who are willing and able to support the person.

Serious medical treatment involves:

• giving new treatment;
• stopping treatment that has already started; or
• withholding treatment that could be offered; and where there is either:
  1. a fine balance between the benefits and the burdens and risks of a single treatment;
  2. choice of treatments which are finely balanced; or
  3. what is proposed would be likely to involve serious consequences.

A person has a right to an IMCA if such treatment is being contemplated on their behalf and the person has been assessed as lacking capacity to make the decision for themselves at that time.

An IMCA cannot be involved if the proposed treatment is for a mental disorder and that treatment is authorised under Part IV of the Mental Health Act 1983. However, if a person is being treated under the MHA and the proposed treatment is for a physical illness, for example, cancer, an IMCA can be involved

Local authority and NHS staff must be able to identify when a person has a right to an IMCA and know how to instruct an IMCA.

Firstly, they should know which organisation has been commissioned to provide an IMCA service in the local authority. Local arrangements will be in place with each IMCA service provider regarding the ways in which referrals can be made. (To make a referral, please see Knowsley Advocacy Hub | n-compass)

At the time when the referral is made it must be evident that:

• a person lacks the capacity to make the particular decision;
• the decision is either serious medical treatment; a change in accommodation, a care review or an adult protection case; and
• there is nobody who can appropriately support and represent the person (this does not apply to safeguarding adults).

7. When an IMCA cannot be involved

An IMCA cannot be involved if:

• a person has capacity;
• the proposed serious medical treatment is authorised under the MHA and is therefore for a mental disorder rather than a physical condition;
• the proposed long term change in accommodation is a requirement under the MHA;
• there is no identifiable decision about a long term change in accommodation or serious medical treatment or decisions relating to a care and support plan review or safeguarding adult procedures;
• there is any other person (not in a paid capacity) who is willing and able to support and represent appropriately the person who lacks capacity (please note, a family member may not be suitable if, for example, they are implicated in a safeguarding incident); or
• decisions are being made in relation to a person’s finances, unless there are safeguarding adult procedures in which an IMCA is involved.

The IMCA will stop being involved in a case once the decision has been finalised and they are aware that the proposed action has been carried out. They will not be able to provide ongoing advocacy support to the person. If it is felt that a person needs advocacy support after the IMCA has withdrawn, it may be necessary to make a referral to a local advocacy organisation (see Independent Advocacy).

8. Person requiring an IMCA is Receiving Funding from outside the Area where they are currently Living

Each IMCA service covers a local authority area and all eligible people in that area, whether on a permanent or temporary basis, must be referred to the local IMCA service. For example, if a person is living in a care home in Cambridgeshire but Essex County Council are providing the funding for that placement and there is a need to refer the person to IMCA, the Cambridgeshire IMCA service should provide the service.

9. Further Reading

9.1 Relevant chapters

Independent Advocacy

Mental Capacity

Assessment

Adult Safeguarding

Review of Care and Support Plans

9.2 Relevant information

Mental Capacity Act: Making Decisions, Office of the Public Guardian

Advocacy Services for Adults with Health and Social Care Needs (NICE)

Audio & Quick Read Summary

1. The Deprivation of Liberty Safeguards

A deprivation of liberty can occur in any care setting and is when a person has their freedom limited in some way.

Schedule 1, Part 1, Section 5(4) of the Human Rights Act, 1998, states that ‘everyone who is deprived of his [their] liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his [their] detention shall be decided speedily by a court and his release ordered if the detention is not lawful’.

In England and Wales, the Deprivation of Liberty Safeguards (DoLS) are used to check that actions which limit the liberty of a person who does not have the capacity to consent to this, are done in the least restrictive way necessary to keep them safe and that it is in their best interests.

DoLS provide a process for a deprivation of liberty to be made legal through either ‘standard’ or ‘urgent’ authorisation processes. These processes are designed to prevent the making of arbitrary decisions to deprive a person of liberty. They also give people a right to challenge deprivation of liberty authorisations.

2. Identifying Deprivation of Liberty

In 2014, a ruling by the Supreme Court (P v Cheshire West and Chester Council and P&Q v Surrey County Council, March 2014) held that, as well as hospitals and registered care homes, a deprivation of liberty can also occur in domestic / home type settings where the state is responsible for enforcing such arrangements. This may include a placement in a supported living arrangement in the community and in a person’s own home. Where a deprivation of liberty occurs outside of a hospital or registered care home, it must be authorised by the Court of Protection (see Section 11, Deprivation of Liberty outside a Hospital or Registered Care Home Setting).

It is crucial that all care providers can recognise when a person might be deprived of their liberty by applying the ‘acid test’ (see Section 3, below) and then take the required action by applying for an authorisation to the supervisory body / Court of Protection. This extends to all hospitals and registered care homes, domiciliary care providers, and day services.

Associated health and social care professionals must also be able to identify a potential deprivation of liberty, and know how to notify the supervisory body of deprivation of liberty which may be unauthorised.

3. The ‘Acid Test’

In its 2014 ruling, the Supreme Court clarified that there is a deprivation of liberty where the person:

• is under continuous supervision and control (all three of these aspects are required); and
• is not free to leave;
• lacks capacity to consent to these arrangements; and
• whose confinement is the responsibility of the State.

This means that if a person who lacks capacity to consent to their care arrangements is subject to continuous supervision and control and is not free to leave, they are deprived of their liberty.

The following factors are not relevant to determining of there is a deprivation of liberty:

• the person’s compliance or lack of objection;
• the reason or purpose behind a particular placement; and
• the extent to which it enables them to live a relatively normal life for someone with their level of disability.

See also Deprivation of Liberty Safeguards: At a Glance (SCIE) 

4. Restrictions and Restraint

There is a difference between deprivation of liberty (which is unlawful, unless authorised) and restrictions on a person’s freedom of movement.

Restrictions of movement, if in accordance with the principles and guidance of the Mental Capacity Act 2005 (MCA), can be lawfully carried out in a person’s best interests, in order to prevent harm. This includes use of physical restraint where that is proportionate to the risk of harm to the person and in line with best practice.

Neither the MCA nor DoLS can be used to justify the use of restraint for the protection of members the public, members of staff, or other service users or patients.

Examples of restraint and restrictions include:

• using locks or keypads to prevent a person leaving a specific area;
• administration of certain medication, for example to calm a person;
• requiring a person to be supervised when outside;
• restricting contact with family and friends, including if they could harm the person;
• physical intervention to stop someone from doing something which could harm themselves;
• removing items from a person which could harm them;
• holding a person so they can be given care or treatment;
• using bedrails, wheelchair straps, and splints;
• requiring close supervision / monitoring in the home;
• the person having to stay somewhere they do not want;
• the person having to stay somewhere their family does not want.

It is important that practitioners ensure they are implementing least restrictive practice and that they ask themselves ‘Is this person as free as anyone else?’ Practitioners need to check if they can reduce restrictions whilst ensuring the person is safe and their needs are being met. Guidance from the LGA and ADASS, Promoting Less Restrictive Practice: Reducing Restrictions Tool for Practitioners, contains examples for care homes on situations they come across on a daily basis and provides advice on how they can reduce restrictions and the blanket support they may have in place.

5. The Deprivation of Liberty Safeguards Process

5.1 Making an application for a standard authorisation

There are several stages involved in authorising a deprivation of liberty.  It is the local authority’s legal duty, as supervisory body, to ensure that where a person is being deprived of their liberty in a hospital or a registered care home, or a deprivation of liberty is being proposed, that steps are taken to safeguard them. This only applies to people where they are ‘ordinarily resident’ in that local authority. The supervisory body organises and oversees the entire process for authorising a deprivation of liberty that occurs in a registered care home or hospital. (See Ordinary Residence chapter for more guidance on deciding ordinary residence where this is unclear).

Annex 1 in the DoLS Code of Practice provides an overview of the legal process that begins when an application for a standard authorisation is received.

As a first step, the managing authority (the hospital or registered care home) must fill out a Form 1 Deprivation of Liberty Safeguards: Resources, DHSC) requesting a standard authorisation. This should be sent to the supervisory body (the local authority DoLS Team), who will then commission assessments to decide whether the person meets the necessary requirements for a standard authorisation to be granted or not granted.

5.2 Managing authority granting an urgent authorisation

The managing authority must decide whether an urgent authorisation should be issued in addition to their application for a standard authorisation (this is their responsibility) or whether just a standard authorisation is needed.

An urgent authorisation enables the managing authority to lawfully deprive the relevant person of their liberty for a maximum of seven days where certain criteria are met. This can be extended for a further seven days by the supervisory body, but only if certain criteria are met (see Deprivation of Liberty Safeguards: Resources, DHSC).

When issuing an urgent authorisation, the managing authority must reasonably believe a standard authorisation would be granted.

Before granting an urgent authorisation, the managing authority should try to speak to the family, friends and carers of the person and inform the person managing the person’s care. Information they provide may assist in preventing the adult being deprived of their liberty. Efforts to contact family and friends and any discussions had with them should be documented in the adult’s case records and on the urgent authorisation. The managing authority also need to ensure that they provide up to date contact information of friends / family / carers / advocates / allocated worker and other professionals on the Form 1 when they make the referral or grant themselves an urgent authorisation.

5.3 ADASS DoLS Priority Tool

The ADASS screening tool has been developed for use by local authorities when prioritising DoLS requests. The screening tool sets out three areas – high, medium and low – with criteria under each heading to assist with prioritising each referral received.  It also includes suggestions on how to manage renewals and those people who have no family or friends to represent them.

For more information see ADASS DoLS Priority Tool – A Screening Tool to Prioritise the Allocation of New Requests to Authorise a Deprivation of Liberty.

6. The Assessment Process

Before the supervisory body can grant an authorisation for a deprivation of liberty they will arrange for the following assessments to be completed:

• mental health assessment: to confirm whether the person is suffering from a mental disorder;
• eligibility assessment: to confirm the person’s existing or potential status under the Mental Health Act, and whether it would conflict with a DoLS authorisation (this would normally be in a hospital setting).
• mental capacity assessment: carried out by either the mental health or best interest assessor to determine the person’s capacity to validly consent to their current care arrangements;
• best interests assessment: confirms whether deprivation of liberty is occurring, whether it could be avoided, and whether it is in the person’s best interests. The assessment will also recommend, how long the authorisation should last and who should act as a person’s representative throughout the period of authorisation;
• age assessment: to confirm the person is at least 18 years of age for DoLS. If a person is between the ages of 16 and 18 years of age, application needs to be made to the Court of Protection if they need to be deprived of their liberty;
• no refusals assessment: to confirm whether there is any valid advance decision which would conflict with the authorisation, or if there is a valid and registered Lasting Power of Attorney or Deputy with authority over welfare decisions, who would oppose the authorisation.

The assessments must be completed by specially trained professionals.

An Independent Mental Capacity Advocate (IMCA) may also be appointed during the assessment process if required if the person does not have any family / friends or other non-professionals involved (see Independent Mental Capacity Advocate Service chapter).

7. Granting or Not Granting a Standard Authorisation

If any of the requirements in Section 6, The Assessment Process are not met, a deprivation of liberty authorisation cannot be lawfully granted. This may mean the registered care home or hospital must change its care plan to remove the restrictions and restraints causing the deprivation of liberty.

If all requirements are fulfilled, the supervisory body must grant the deprivation of liberty authorisation, for up to a maximum of one year. The supervisory body must inform the adult, those consulted, and the managing authority in writing.

The restrictions should cease as soon as the adult no longer requires them; they do not have to be in place for the full period of the authorisation.

At the end of the authorisation period, if it is believed the adult still needs to be deprived of their liberty, the managing authority must request another standard authorisation.

8. Conditions and Recommendations

The best interests assessor (BIA) can recommend certain conditions are applied to the standard authorisation. The supervisory body can choose whether to attach the BIA’s recommended conditions to the standard authorisation, if they agree with them; the supervisory body can also attach its own conditions to the authorisation. The managing authority must implement the conditions.

It is ultimately the supervisory body’s responsibility to ensure that any conditions attached to a DoLS authorisation are complied with.

The BIA or supervisory body can also give recommendations relating to the deprivation of liberty to the local authority or organisation managing a person’s care.

9. Appointing a Relevant Person’s Representative

Everyone who is subject to a deprivation of liberty standard authorisation will be appointed a Relevant Person’s Representative (RPR). The RPR must maintain regular face-to-face contact with the person, and represent and support them in all related matters, including requesting a review or applying to the Court of Protection to challenge a DoLS authorisation.

If there is no family member, friend, or informal carer suitable to be the person’s representative, the DoLS office will appoint a professional  representative. Their name should be recorded in the person’s health and social care records.

The family/friend RPR has the right to request the advice and support of a qualified IMCA (see Independent Mental Capacity Advocate Service chapter).

If a person is deprived of their liberty in a setting other than a care home / hospital and the Court of Protection issues a Community DoL order authorising their deprivation of liberty, the person must be given a Rule 1.2 Representative.

In Re KT & others, which was heard before the Court of Protection, Mr Justice Charles approved the use of general visitors to act as Rule 1.2 Representatives when there is no one else – such as family members or advocates – available to act for the person who is the subject of the proceedings. General visitors are commissioned by the Court of Protection to visit the person and others involved in the case, and report back their findings. Appointing a general visitor safeguards the rights of the person in the proceedings.

It is also the responsibility of the RPR or Rule 1.2 Representative to ensure that any conditions attached to a DoLS authorisation or Community DoL order are complied with and report this back to the supervisory body or Court.

See Chapter 7 DoLS Code of Practice for more information on the role of the RPR.

10. Reviewing the Standard Authorisation

This is also known as Part 8 DoLS Review. The registered care home / hospital (managing authority) must monitor and review the adult’s care needs on a regular basis and report any change in need or circumstances that would affect the deprivation of liberty authorisation or any attached conditions. The care home / hospital must request a DoLS review if:

• the adult (who is the ‘relevant person’) no longer meets any qualifying requirements;
• the reasons they meet the qualifying requirements have changed;
• it would be appropriate to add, amend or delete a condition placed on the authorisation due to a change in the adult’s situation;
• the adult or their representative has requested a DoLS review, which they are entitled to do at any time.

The supervisory body where necessary, will arrange for assessors to carry out a review of an authorisation when statutory conditions for a Part 8 DoLS Review are met. Statutory DoLS reviews do not replace other health or social care reviews.

A review of the DoLS requirements and or conditions can be undertaken, if necessary, at any time during an authorisation period.

10.1 Where the relevant person ‘objects’ to being deprived of their liberty in a hospital or registered care home

A judgement by Mr Justice Baker, Court of Protection, February 2015, ruled that in all cases where a person lacks capacity, a DoLS assessment has been completed and the relevant person objects to their placement, a referral must be made to the Court of Protection under S 21A MCA.

This referral would often be made by the Relevant Person’s Representative (RPR) (see Section 9, Appointing the Relevant Person’s Representative) but if this does not happen the local authority should take action to make the referral themselves.

Practice lessons from the judgement include:

• plan in advance: care should be taken to ensure that a DoLS assessment is completed prior to the move of the relevant person into residential accommodation. There should be very few exceptions to this rule. DoLS assessments should be completed in the case of ‘respite’ care if it is likely that this will become permanent either prior to the placement or with urgency after the placement is started;
• RPR – conflict of interest: care should be taken that the person appointed as the RPR is willing to make a referral to the Court of Protection if the relevant person objects to their placement. This may be difficult if the RPR is a family member who has a personal interest in the placement of the relevant person. In this case a professional representative should be appointed;
• local authority duty (supervisory body): the local authority has a duty to check that the RPR meets all the criteria and, if not, to take action to rectify this. They should make resources available to provide IMCAs;
• challenge to placement: where the relevant person is challenging their placement, action should be taken speedily to refer to the Court of Protection.

This is the judgement: AJ (Deprivation of Liberty Safeguards). 

11. Deprivation of Liberty outside a Hospital or Registered Care Home Setting

This is also known as deprivation of liberty in a domestic setting, or Community DoL.

Applications to authorise a deprivation of liberty in the community are made to the Court of Protection (contact the local authority’s legal department for more details). In most cases the authorisation is a paper-based application that should not require a court hearing.

As a practitioner you will also need to ascertain whether the person who has a care package at home or in supported living, may be deprived of their liberty by way of their care plan – that is, do they meet the ‘acid test’ as described above in Section 3, The Acid Test?

• If, after consideration, the person meets the ‘acid test’, you will need to make the application for a deprivation of liberty which can only be authorised by the Court of Protection.
• Let your manager know that you are working with a person who may be deprived of their liberty. This is important as all referrals to the Court of Protection need to be sent via the relevant legal team and there is a cost involved.
• Follow the relevant guide from your legal department to make a deprivation of liberty application as soon as possible.
• It is possible for more than one application to be made to the Court of Protection at a time and the court is currently able to accept numerous applications at the same time.
• It is important that a person who has a Deprivation of Liberty authorisation in the community also has a Representative (COP Rule 1.2 part 3a); this person is appointed by the Court.

Court of Protection Hub Case Summaries – Court of Protection Hub

12. Alerting to Unlawful Deprivation of Liberty

If a person (professional or otherwise) suspects a person is being deprived of their liberty and it has not been authorised, they should first discuss it with the registered care home manager, hospital ward manager or supported living manager.

If the manager agrees the care plan involves deprivation of liberty, they should be encouraged to make a request for authorisation. Everyone should be satisfied the care plan contains the least restrictive options available to keep the person safe, and that it is in the person’s best interest.

If the manager does not agree to make a request for a DoLS authorisation, the concerned person should approach the local authority or the Court of Protection to discuss the situation and report the potential unlawful deprivation.

13. Consequences of an Unlawful Deprivation of Liberty

If an organisation breaches a person’s human rights (Articles 5 & 8) by unlawfully depriving them of their liberty, it could result in legal action being taken, including a court declaration that the organisation has acted unlawfully and breached the adult’s human rights. This could lead to a claim for compensation, negative press attention and remedial action taken by commissioners and regulators.

14. Patients Receiving Life Sustaining Treatment

See Intensive Care Society and the Faculty of Intensive Care Medicine Guidance on MCA / DoL

The judgement in R (Ferreira) v HM Senior Coroner for Inner South London held that patients in intensive care  are not necessarily deprived of their liberty as per the ‘acid test’ in Cheshire West, as the facts in the two cases differ. The effect of this judgement is that even if a patient receiving ‘life sustaining treatment’ (S.4b MCA) appears to be deprived of their liberty, they will not be said to be so if the primary condition they are being treated for is a physical condition even if there is an underlying mental disorder and they are an inpatient in intensive care.

“There is in general no need in the case of physical illness for a person of unsound mind to have the benefit of safeguards against deprivation of liberty where the treatment is given in good faith and is materially the same treatment as would be given to a person of sound mind with the same physical illness.” (Judge Lady Justice Arden)

Any life-sustaining treatment, therefore, for a primary condition which is a physical condition will not constitute a deprivation of liberty where the same treatment would be given to a patient who had capacity to consent to it.

The Judge also held however that there may be some circumstances where a deprivation of liberty arises and needs to be authorised. In NHS Trust & Ors v FG [2015] for example, a hospital sought authorisation to deprive a pregnant woman of her liberty. The order prevented her from leaving the delivery suite and authorised invasive medical treatment such as a caesarean section.

15. Further Reading

15.1 Relevant chapters

Mental Capacity

Independent Advocacy

15.2 Relevant information

ADASS DoLS Priority Tool – A Screening Tool to Prioritise the Allocation of New Requests to Authorise a Deprivation of Liberty

Deprivation of Liberty Safeguards: Code of practice to supplement the main Mental Capacity Act 2005 Code of Practice

Deprivation of Liberty Safeguards: Forms and Guidance (Department of Health and Social Care)

Department of Health Advice Note

Deprivation of Liberty Safeguards: Know Your Rights (ADASS)

Promoting Less Restrictive Practice: Reducing Restrictions Tool for Practitioners (ADASS and LGA)

Understanding when Someone is Deprived of their Liberty (The Law Society)

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