Vulnerable Adults Failed by Act Designed to Protect

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The House of Lords Select Committee has reported on the Mental Capacity Act 2005 saying, 'vulnerable adults are being failed by the Act designed to protect and empower them'.

They estimate tens of thousands of elderly and disabled people are being locked up or forcibly medicated, and are calling for reform of the system to provide better protection. They are concerned that 'social workers, healthcare professionals and others involved in the care of vulnerable adults are not aware of the Mental Capacity Act, and are failing to implement it'.

What is the Mental Capacity Act?

The Act was introduced to protect vulnerable adults who may be unable to make decisions for themselves or lack the mental capacity to do so. An individual may lack capacity due to a learning disability, dementia, a stroke or other mental health condition. The purpose of the Act is to allow individuals to make as many decisions as they can for themselves. If unable to do so it ensures they are consulted and engaged in the decision-making process which is in their best interests.

The Act can cover a broad range of decisions about an individual's finances, where they should live, what medical treatment they should receive and even who should be allowed to visit them.

How Does it Work?

The starting point of the Act is determining whether an individual has capacity to make a given decision themselves at the relevant time. A person does not have capacity if they are unable to understand the information relevant to the decision, to retain that information, use or weigh the information as part of the process of decision-making and communicate this decision. Capacity often fluctuates and an individual may be able to make decisions on some subjects but not others.

The Act splits health and welfare decision into two different legal processes:

  • Best Interest proceedings
  • Deprivation of Liberty Safeguards (DOLS)

Best Interest Proceedings

Whenever a decision is made on behalf of a person who does not have capacity it must be carried out in that persons best interests. This requirement can cover all sorts of decisions from where a person should live, whether they should go on holiday or what medical treatment or care they should receive. It is often Local Authorities, through their social services department, or Health Trusts which decide what is in the person's best interest.

When they make these decisions they should consider the person's past and present wishes and feelings, they should consult the views of family members or anyone caring for the person and balance these against the risks or medical needs of the person. If there is any dispute about whether a decision is in a person's best interest, an application should be made to the Court of Protection who will then make a decision.

Deprivation of Liberty Safeguards

It is sometimes necessary for care homes or hospitals to put regimes in place which limit an individual's ability to leave the care home or hospital and/or visit or contact their family. Deprivation of Liberty Safeguards (DOLS) are designed to ensure that such restrictions are put in place in a safe and correct way, and only when it is in the best interest of the person concerned. Those responsible for planning care should always provide care in the least restrictive way possible and the Act provides a framework in which the Court of Protection can judge their actions.

Where it is necessary to put in place restrictions that effectively deprives someone of their liberty, those responsible need to apply for a standard authorisation. This should be applied for either when someone is about to be admitted to a hospital or care home, or when they have already been admitted and new restrictions are being put in place. Before authorisation is granted, steps should be taken to consult with the individual subject to the authorisation, family members and those involved with the person's care to ensure that it is not possible to care for them in a less restrictive way. There should also be reviews of the authorisation to ensure that the restrictions are still justified.

It would be unlawful for the hospital or care home to carry out or continue with an action that is depriving someone of their liberty without obtaining a standard authorisation. It is possible for a hospital or care home to apply for an urgent authorisation but these are limited to seven days and a standard authorisation must be applied for.

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