This article relates to the CQC key question: Is your practice effective?
GPs and their staff (and all providers of health and social care) should have a good understanding of the Mental Capacity Act (MCA) 2005 and the Deprivation of Liberty Safeguards (DoLS) to ensure that they can act in a patient’s best interest.
This article provides a reminder of the principles of MCA, including:
- When to appoint an independent mental capacity advocate (IMCA)
- Lasting power of attorney (LPA)
- Court of protection.
It then details how the application of DoLS has changed following a Supreme Court Judgement in March 2014.
Principles of the Mental Capacity Act
The principles of the MCA and DoLS, and the key areas affecting GPs are:
- Individuals are presumed to have capacity.
- All practical steps must be taken to support someone in decision-making.
- A person is not to be treated as lacking capacity merely through making an unwise decision.
- An action taken on behalf of a person must be in their best interests.
- Regard must be had as to whether an act or decision is the least restrictive of a person's rights and freedoms.
The MCA prohibits blanket decision-making on behalf of people with capacity issues and introduces a functional test of capacity that is time and decision specific.
It requires everyone who cares for or treats people with capacity issues to respect their individual rights and to act in their best interests when making decisions on their behalf.
For example, if a patient suffers from early stage dementia, and needs to make a decision on whether to have the flu jab, the GP should make every effort to communicate the pros and cons of having the treatment when the patient is most alert. This is so that the patient can make a decision.
A GP becomes the decision-maker only if the patient lacks the capacity to make that decision for them and has not made an LPA granting the donee the power to make decisions about medical treatment. GPs must make the decision for the patient in their best interests and need to know when they can and cannot disclose confidential information.
Other key areas of the MCA affecting GPs are:
- Independent mental capacity advocates (IMCAs).
- The ability for adult patients to make a lasting power of attorney (LPA).
- The establishment of a new Court of Protection.
- Court-appointed deputies. GPs need to be aware of people appointed to these roles and when to involve them in decision-making about patients who lack capacity.
Appointing an independent mental capacity advocate (IMCA)
The IMCA role became operational in 2007. It is relevant for a person who lacks capacity and has no family or friends whom it would be appropriate to consult, nor do they have an appointed attorney under a lasting power of attorney.
For these people, in certain situations (such as when there is a decision to be made about an NHS body providing serious medical treatment) that body is required to instruct and consult an IMCA. You need to be aware of the duty to appoint an IMCA or to consult an existing IMCA when appropriate.
Lasting powers of attorney (LPA)
LPAs replaced enduring powers of attorney. There are two types:
- A property and affairs LPA allows an attorney to make decisions about financial matters and, unlike a personal welfare LPA, they can be used when the person still has capacity, unless otherwise specified.
- A personal welfare LPA allows an attorney to make decisions about both health and personal welfare. This personal welfare attorney, however, cannot consent to or refuse treatment when the person has capacity to make the decision themselves.
The patient can also add restrictions or conditions on areas where they do not wish the attorney to act.
Even if an LPA includes all healthcare decisions, the attorney has no decision-making power to refuse or authorise treatment in certain situations, such as if the patient has made an advance directive to refuse treatment proposed after making the LPA.
In addition, the attorney cannot insist on treatment that a doctor does not believe is in the patient’s best interest.
If you are aware that a patient has made an LPA you need to check whether it covers financial or personal welfare matters and that it applies to the particular situation.
The LPA will not be effective if the patient has capacity in relation to the welfare issue in question.
Therefore, if an attorney requests disclosure of a patient's records, you must check that a personal welfare LPA is in force, the detail of its provisions and confirm that the patient lacks capacity before complying. It may not be necessary to release the entire record but just the relevant parts to the attorney.
To understand the extent of the attorney's power fully, you should read the LPA, which will be registered at the Office of the Public Guardian. Only those over 18 can appoint someone to act as a LPA.
Court of Protection
The court has the power to make a declaration about whether an adult (or a child in some cases) has or lacks capacity, and to appoint a deputy to make a decision on behalf of a person lacking capacity.
Disputes over a person's capacity, or what treatment is in their best interest can be referred to this court.
If you are concerned about treating patients who lack capacity, contact the Medical Defence Union for advice.
Deprivation of Liberty Safeguards
Deprivation of Liberty Safeguards (DoLS) were established in 2009, yet there remains a widespread lack of understanding of what they are and how and when to apply them. As a result we are failing to protect some of most vulnerable people in society.
Article 5 of the Human Rights Act 1998 requires that no-one should be deprived of their liberty except in defined circumstances and that there must be a suitable legal process in place to protect individuals’ rights. DoLS were introduced to provide this legal procedure.
DoLS form part of the MCA 2005. They are part of wider legislation designed to protect the rights of people who lack the capacity to make decisions about their care or treatment, and address the issue of when limits need to be put on their freedom to keep them safe.
DoLS previously only covered people who looked after in care homes and hospitals. However, following a Supreme Court judgement in 2014, DoLS have been extended to include any individuals with substantial care needs in other community settings including home. It is therefore essential that GPs have a robust understanding of the DoLS as well as of the MCA.
Our inspectors will expect GPs and practice staff to be able to discuss these during an inspection visit, and know that providers of care are required by law to notify CQC of applications to deprive a person of their liberty and their outcome.
Applying for authorisation for a deprivation of liberty
DoLS require any provider to apply for authorisation before depriving a person under their care of their freedom. However, the low number of applications in the first years after they were introduced suggested a widespread lack of understanding of their use and applicability. March 2014 marked the start of a significant shift in the way safeguards are used.
Following a Supreme Court judgement definition of deprivation of liberty was clarified to be: a person lacking the mental capacity to agree to the arrangements for necessary care or treatment who is (a) under continuous supervision and control and (b) not free to leave (regardless of whether they want to or attempt to).
The judgement also explained that people may be deprived of their liberty in settings outside of hospitals and care homes to include community settings such as supported living.
If any care provider (called the ‘managing authority’), including a GP practice, suspects that someone using their service is at risk of being deprived of their liberty, they are required to apply to the relevant ’supervisory body‘, such as CCGs, local health boards or local authorities, for authorisation.
The supervisory body will carry out specific assessments in order to grant an authorisation. If you suspect that someone is being deprived of their liberty without the necessary authorisation, you should inform the managing authority, who should then apply to the supervisory body for authorisation.
An example might be an elderly lady, Mabel, living alone at home with advancing dementia and a significant package of care. Mabel could have certain freedoms restricted, such as access to certain parts of her home, or even her ability to leave the house. While this might be the right decision to keep her safe, she is both under continuous supervision and is not free to leave.
Mabel is likely to be visited regularly by her GP who should recognise that this amounts to a deprivation of liberty. If the provider of Mabel’s care at home (such as social services or a private provider) has not applied for authorisation, the GP has a responsibility to notify the provider of their duty to do so. Authorisation would not mean that Mabel’s freedom must be restricted, rather only that which is:
- In her own best interests to protect her from harm.
- Proportionate to the likelihood and seriousness of the harm.
- The least restrictive of her rights and freedoms.
It should also be reviewed on a regular basis, such as if Mabel’s health and orientation improved after recovering from an acute infection.
Limitations on DoLS
- The safeguards do not apply to people detained under the Mental Health Act 1983.
- They do not apply to people under the age of 18.
- A deprivation of liberty authorisation does not authorise treatment itself, but only authorises the removal of some freedoms.
DoLS are essential to protect people who are unable to make decisions about their care and whose liberty has been deprived. Now that DoLS apply to people living in the community with support, it has become more important than ever for GPs to be confident with how and when these safeguards apply.
Health and social care professionals have a duty to reduce the risk of depriving people of their freedom, keeping their best interests central to planning and providing care. When this is unavoidable authorisation must be sought and any restrictions must be regularly reviewed.
Find out more
- Deprivation of Liberty Safeguards 2014/15 - on CQC website
- Deprivation of Liberty Safeguards 2013/14 - on CQC website
- How the Mental Capacity Act 2005 affects you - on CQC website
- Supreme Court Judgement - deprivation of liberty safeguards
- Supreme Court Judgement - CQC briefing for providers
Professor Nigel Sparrow is senior national GP advisor and responsible officer at the CQC
More CQC resources
- View the full CQC Essentials series on Medeconomics
- CQC's recommended reading to help practices meet regulations and prepare for an inspection