The law only allows people to make decisions for people who cannot make decisions for themselves in set circumstances. If you or a relative has completed a Lasting Power of Attorney, you will have decided who you want to make decisions on your behalf, if you can no longer make financial decisions, or health and welfare decisions. Where someone loses capacity to make decisions regarding care and treatment and they have not got an LPA, professionals working with the person will use the Mental Capacity Act to make ‘Best Interest Decisions’.
We will try and establish what the person may have thought before they lost capacity. It is possible to record your wishes and preferences; this can help us to understand what is important to you and your family. This is often referred to as an Advance Care Plan. We will consult with family and friends but the final decision will be made by the professional, e.g. Nurse or Doctor who must act in the best interests of the patient.
The Deprivation of Liberty Safeguards came into force in England and Wales on 1 April 2009 under amendments to the Mental Capacity Act 2005. They were introduced following a decision in the European Court of Human Rights (ECHR). The words we use can seem frightening but essentially we are talking about protecting vulnerable people who may not be able to make decisions for themselves. Organisations looking after people who lack capacity to make decisions have processes they need to follow, these ensure that people have the right care and support, in the least restrictive way possible.
The Supreme Court made a decision in March 2014 which changed how we look at Deprivation of Liberty Safeguards. It altered how we decide if someone might be deprived of their liberty. Now if someone is in one of the following settings:
- Residential Care Homes
- Nursing Care Homes
- Respite placements
1) They lack the capacity to consent to make a decision to be accommodated in the care settings listed above
2) They are not free to leave
3) Staff have complete and effective control over the person.
They might be being deprived of their liberty and the hospital, hospice or care provider will need to consider making an application to Leeds Council to authorise a DoLS.
What this means:
Leeds Council will ask a Best Interest Assessor (BIA) (usually a social worker) to visit the person and speak to their family, staff in the unit and anyone else who could help them to understand what is happening. They will also ask a Psychiatrist to see the person, who will work with the BIA to make sure that their assessment is comprehensive.
The BIA will be able to look at how the organisation has worked with the person and their family and will decide if there is a Deprivation. They are able to provide a safeguard that we are doing what is necessary to treat and care for the person, in the least restrictive way possible. It is a check for organisation’s when a BIA undertakes an assessment; they are not there to interfere with families’ right to privacy but offer a protection to people who cannot make decisions.
The BIA may ask a relative to be a part of this process by becoming the Relevant Person’s Representative, this allows for additional scrutiny of the care and treatment offered to the patient.