Consent, mental capacity, and deprivation of liberty safeguards

Working in partnership with patients and those who use our services, including their families and carers, is important to us. Without your cooperation, support, understanding and agreement, it would be very difficult for us to provide safe and effective care.

As a healthcare provider, we have to ensure that suitable arrangements are in place for obtaining and acting in accordance with the consent of people who use our services.

We also have to ensure that our staff fully adhere to and work within the law that relates to mental capacity and the deprivation of liberty.  

The information and resources in this section may help you think through and consider these important issues

Mental Capacity Act (MCA)

What is mental capacity?

Having mental capacity means that a person is able to make their own decisions. The law states that a person is unable to make a particular decision if they cannot do one or more of the following: 

  • Understand information given to them

  • Retain that information long enough to be able to make the decision

  • Weigh up the information available

  • Communicate their decision – this could be by talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand

The Mental Capacity Act (MCA) is specifically designed to cover situations where someone is unable to make a decision because the way their mind or brain works is affected, for instance, by illness or disability, or the effects of drugs or alcohol.

A lack of capacity could be due to: 

  • A stroke or brain injury
  • A mental health problem
  • Dementia
  • A learning disability
  • Substance misuse
  • Confusion, drowsiness or unconsciousness
Decisions covered by the Mental Capacity Act:

Decisions that are covered by the MCA can range from day to day decisions such as what to wear or eat, through to more serious decisions about where to live, having an operation or what to do with a person’s finances and property 

Decision not covered by the Mental Capacity Act:

Some types of decisions (such as marriage or civil partnership, divorce, sexual relationships, adoption and voting) can never be made by another person on behalf of a person who lacks capacity. This is because these decisions or actions are either so personal to the individual concerned, or because other laws govern them and the Mental Capacity Act does not change this. 

If the circumstances arise as to whether an individual has the capacity to consent to a particular treatment, therapy or intervention, then our staff will work with that individual, their family, carer, advocate and others in addressing the specific issues in partnership to move the situation forward.    

Deprivation of Liberty Safeguards (DoLS)

What are Deprivation of Liberty Safeguards (DoLS)?

Deprivation of Liberty Safeguards (DoLS) provides protection for vulnerable people who are accommodated in hospitals or care homes in circumstances that amount to a deprivation of their liberty and who lack the capacity to consent to the care or treatment they need.  

It is anticipated that the majority of people who will require the protection of the DoLS are those people with more severe learning disabilities, older people with any of the range of dementias or people with neurological conditions such as brain injuries.

The DoLS state that deprivation of liberty:

  • Should be avoided whenever possible

  • Should only be authorised in cases where it is in the relevant person’s best interests and the only way to keep them safe

  • Should be only for a particular treatment plan or course of action

  • Should be for as short a time as possible

If the circumstances arise when a deprivation of liberty is required, then the trust will work with its local authority partners in addressing this.