Mental Capacity Act & Deprivation of Liberties

What is a deprivation of liberty?

The Mental Capacity Act (MCA) 2005

Mental capacity means being able to make your own decisions. The Mental Capacity Act 2005 (MCA) aims to ensure that individuals participate as fully as possible in all decisions relating to them.

It also protects those who cannot make their own decisions about a particular matter for any reason whether temporary or permanent.  It applies to people aged 16 years and over.

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

In March 2014 the Supreme Court ruled that *P, a profoundly disabled man, was deprived of his liberty because of the complete and effective control exercised over his life by those looking after him. The Supreme Court also decided that a deprivation of liberty can occur in domestic settings where the State (e.g. CCG) is responsible for imposing such arrangements. This includes supported living placements in the community as well as some other domestic arrangements. Such arrangements must be authorised by the Court of Protection.

As a result of this case, there are two key questions to ask – ‘the acid test’ - in order to decide whether a person (who does not have the mental capacity to consent to the arrangements) is being deprived of their liberty -

(1) Is the person subject to continuous supervision and control?

(2) Is the person free to leave?

NB: for a person to be deprived of their liberty, they must BOTH be subject to continuous supervision and control AND not be free to leave.  The focus is not on whether the person is expressing a desire to leave, or trying to leave, but on what those with control over their care arrangements would do if they tried to leave

When applying the acid test, the following factors are NOT relevant:

(1) The person’s apparent compliance with or lack of objection to their living and support arrangements;

(2) The relative normality of the placement – for example they are able to participate in external activities; and

(3) The reason or purpose behind a particular placement – for example they need a high level of supervision to keep them safe or a high level of support because of physical disabilities.

When every element of the “acid test “is satisfied an application will need to be made to the Court of Protection to authorise a deprivation of liberty. (The person will not be eligible for a standard DOLS authorisation because this only applies to customers in care home and hospital settings).

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