What Happens When We No longer Have The Mental Capacity To Make Decisions Regarding Our Own Care?

The concept of ‘Deprivation of Liberty’ means that when it is in the best interest of the individual, they may necessarily be restricted in their movements or travel. For instance, a dementia patient may be prevented from entering or leaving a building or room if it is deemed unsafe for them to do so.

The current system that deals with cases involving individuals that no longer have the mental capacity to make a decision regarding their own care has been widely criticised. ‘Deprivation of Liberty Safeguards’ (DoLs) was labelled as overly complex and bureaucratic, as well as being burdensome on local authorities.

The proposed legislation, in the form of the Mental Capacity (Amendment) Bill, is currently under scrutiny in Parliament. The new legislation does not wish to do away with deprivation of liberty as a method of safeguarding, but rather simplify the system.

The new law will introduce ‘Liberty Protection Safeguards’, a new system that aims to involve families more, give swifter assessments, and harmonise inter-agency communication for more efficient processing.

But what do we mean by mental capacity?

The Mental Capacity Act

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.


The Act sets out a two-stage test regarding 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 drug or alcohol or use?

2) Does the impairment mean that the person is unable to make a specific decision when they need to? People can lack the capacity to make some decisions but have the 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.

The Act also states that assumptions about a person’s capacity should not be made on the basis of appearance, condition, behaviour or age. It also seeks to impose the least restrictive option upon the person that lacks capacity. If a deprivation of liberty order is required, it must be authorised by the local authority. If no legal authorisation is granted, then unlawful deprivation of liberty will occur.

If you have been affected by any of the issues raised in this article, please contact our experienced lawyers for further guidance and advice.


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This article is written by our legal content writer James Chalkley (LLB. LLM.)

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