Safeguarding - Deprivation of Liberty Safeguards, Mental Health Capacity Act
Safeguarding means protecting a person's right to live in safety, free from abuse and neglect.
- reducing the risk of abuse and neglect to patients and carers
- stopping abuse or neglect where possible
- supporting patients and carers to make choices and have control about how they live their lives
- providing information so patients and carers know the different types of abuse and how to report concerns about safety.
As a health and social care professional, you have a responsibility to report any concerns you have about a patient or carer's safety. If it's safe to do so, you should also speak to the person about your concerns and involve them in decisions as much as possible.
If you're worried that a patient or carer is being abused or at risk, it's important to act as soon as possible. It's everyone's responsibility to report signs of abuse – do not assume another professional will do something.
If you suspect abuse and the person is in immediate danger, telephone 999.
If the person is not in immediate danger, you should report the abuse to your organisation's safeguarding lead or your line manager. Follow the safeguarding policy for your organisation and the policy for sharing information about patients. Most organisations will have a place to log safeguarding concerns. Ask your manager if you do not know how to do this, or do not know where to find the safeguarding policy.
If it's safe to do so, speak to the person about your concerns first. You should only do this if you're trained to do so. If you think having a conversation with the person might put them in danger, speak to your line manager or safeguarding lead first. And if you're unsure what to do, speak to someone with more experience.
When you have the conversation with the person, these are some things to consider:
- Speak to them alone – not with family, friends or children.
- Plan enough time to speak to them properly, and make sure you will not be interrupted. Ask your manager if you need someone to cover your other duties.
- Consider whether they need support with communicating in different ways.
- If they speak a different language to you, use a professional interpreter. Do not ask a friend or family member to interpret.
It is important to remember as a practitioner the Think Family approach:
- The Think Family approach refers to the steps taken by children’s, young people’s and adult’s practitioners to identify wider family needs which extend beyond the individual they are supporting.
- In relation to safeguarding, if you work primarily with adults, you should still consider the safeguarding needs of children, and if you work mostly with children, you should still consider the needs of vulnerable adults.
Safeguarding is everyone’s responsibility!
Deprivation of Liberty Safeguards (DoLS) are a set of checks that are part of the Mental Capacity Act 2005. The DoLS procedure protects a person receiving care whose liberty has been limited by checking that this is appropriate and is in their best interests.
Deprivation of Liberty Safeguards (DoLS) only apply to people in care homes and hospitals. There is a separate system for people in ‘supported living arrangements’ – where people live and receive care in the community, including their own homes. It is possible to apply a DoLS in someone’s best interests for people in ‘supported living arrangements’ where people live and receive care in the community, including their own homes however there is a separate process through the court of protection.
A deprivation of liberty is when a person has their freedom limited in some way. It occurs when:
- ‘The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements.’
- A deprivation of liberty is common for a person with dementia receiving care who may have:
- decisions made for them or on their behalf
- limitations on where they are allowed to go
- their routine decided for them.
Sometimes the person’s freedom is limited to give them the care they need, or to prevent them from harm. For example, a care home or staff in a hospital may stop the person from walking around at night or leaving the building, or give them medications that may affect their behaviour.
Sometimes, taking away a person’s freedom in this way is defined in law as a ‘deprivation of liberty’. When providing care, staff should make sure it limits a person’s freedom as little as possible.
Asking whether the following statements apply to the person will help you to think about whether this is a deprivation of liberty:
- The person is under continuous supervision and control.
- The person is not free to leave.
- The person lacks capacity to consent to their care arrangements.
DoLS are a set of checks that aim to protect the person who does not have the capacity to make their own decisions. These checks try to make sure that any care that limits a person’s liberty is done in the least restrictive way and is in the person’s best interests.
Many things count as a deprivation of liberty, and so some people living in care homes and hospitals will receive care that counts as a deprivation of liberty. It is often necessary to provide care in this way.
The DoLS procedure means that the person’s care arrangements and limits to their freedom are not just put in place, but rather they are assessed, applied for a set period of time and reviewed.
If a care home or hospital plans to deprive a person of their liberty, they must get permission. To do this, they must correctly follow legal processes called the Deprivation of Liberty Safeguards (DoLS).
The safeguards include the following four elements:
An assessment of the care being given to the person with dementia must be done by two professionals who are not involved in the care of the person:
- the ‘best interests assessor’ – they must be an approved mental health professional, usually a social worker, nurse, occupational therapist, or psychologist, with the necessary training and experience
- the ‘mental health assessor’ – they must be a medical doctor with experience in mental health.
- This assessment is a safeguard as it makes sure that the care being given is in the person’s best interests.
2. A representative
The person who is being cared for should be given a representative. This can be a paid representative or a relative or friend. The assessment will usually identify who would be best for this role. This person is called the ‘relevant person’s representative’. This person is given certain rights and looks out for the person receiving care. The representative can be helped by an advocate called an Independent Mental Capacity Advocate.
3. The right to challenge
The person (or their representative) has the right to challenge a deprivation of liberty through the Court of Protection.
The deprivation of liberty should be reviewed and checked regularly.
The Mental Capacity Act (MCA) is designed to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment. It applies to people aged 16 and over.
It covers decisions about day-to-day things like what to wear or what to buy for the weekly shop, or serious life-changing decisions like whether to move into a care home or have major surgery.
Examples of people who may lack capacity include those with:
- a severe learning disability
- a brain injury
- a mental health illness
- a stroke
- unconsciousness caused by an anaesthetic or sudden accident
But just because a person has one of these health conditions does not necessarily mean they lack the capacity to make a specific decision.
Someone can lack capacity to make some decisions (for example, to decide on complex financial issues) but still have the capacity to make other decisions (for example, to decide what items to buy at the local shop).
The MCA says:
- assume a person has the capacity to make a decision themselves, unless it's proved otherwise
- wherever possible, help people to make their own decisions
- do not treat a person as lacking the capacity to make a decision just because they make an unwise decision
- if you make a decision for someone who does not have capacity, it must be in their best interests
- treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms
The MCA also allows people to express their preferences for care and treatment, and to appoint a trusted person to make a decision on their behalf should they lack capacity in the future.
People should also be provided with an independent advocate, who will support them to make decisions in certain situations, such as serious treatment or where the individual might have significant restrictions placed on their freedom and rights in their best interests.
The MCA sets out a 2-stage test of capacity:
1) Does the person have an impairment of their mind or brain, whether as a result of an illness, or external factors such as alcohol or drug use?
2) Does the impairment mean the person is unable to make a specific decision when they need to? People can lack capacity to make some decisions, but have capacity to make others. Mental capacity can also fluctuate with time – someone may lack capacity at one point in time, but may be able to make the same decision at a later point in time.
Where appropriate, people should be allowed the time to make a decision themselves.
The MCA says a person is unable to make a decision if they cannot:
- understand the information relevant to the decision;
- retain that information;
- use or weigh up that information as part of the process of making the decision.
When should mental capacity be assessed in a person with dementia?
You must always assume that a person is able to make a decision for themselves, until it is proved that they can’t.
A person’s capacity may be questioned if there is doubt about whether they can make a particular decision. This could happen if:
- the person’s behaviour or circumstances are making those around them doubt whether the person has capacity to make a particular decision
- a professional says they have doubts about the person’s ability to make the decision – this could be a social worker or the person’s GP
- the person has previously been unable to make a decision for themselves.
To work out whether a person has capacity to make a decision, the law says you must do a test (often called an assessment) to find out whether they have the ability to make the particular decision at the particular time.
Before the person is tested, they should be given as much help as possible to make the decision for themselves. Those who are supporting the person to make the decision should find the most helpful way to communicate with the person. This may mean:
- trying to explain the information to them in a different way
- helping them to understand the ideas that are involved in making the decision
- breaking down information into small chunks.
Not all decisions need to be made immediately. It is sometimes possible to delay a decision until a person has capacity to make it. However, this won’t be possible for every decision.