P_CS_42 Mental Capacity Act (Including Deprivation of Liberty Safeguards)

The Mental Capacity Act 2005 (MCA) for England & Wales (The Act) received Royal Assent on 7th April 2005. Parts of the Act were available from April 2007 - the introduction of Independent Mental Capacity Advocate (IMCA) - but most of the Act came into force in October 2007.

The Act will generally only affect people aged 16 and over, and provides a statutory framework for the protection of people who may lack capacity to make some decisions themselves, based on current best practice and common law principles. It also makes it clear who can take decisions in which situations and enables people to plan ahead (Advanced Decisions) for a time when they may lack capacity.

 Effective from 1 April 2009, the Deprivation of Liberty Safeguards (DOLS) have been added to the Act; these were introduced to provide a legal framework around the deprivation of liberty and the Guidance is to be used in conjunction with the Mental Capacity Act guidance 2005. 

DOLS apply to anyone aged 18 and over, who suffer from a mental disorder or disability of the mind-such as dementia or a profound learning disability; who lacks the capacity to give informed consent to the arrangements made for their care or treatment and for whom deprivation of liberty (within the meaning of Article 5 of the ECHR) is considered after and independent assessment to be necessary in their best interest to protect them from harm.

Mental Capacity is the ability to make a decision.  Capacity can vary over time and by the decision to be made. The inability to make a decision could be caused by a variety of permanent or temporary conditions, for example, a stroke or brain injury, dementia, a mental health problem, a learning disability, confusion, drowsiness or unconsciousness because of an illness or the treatment for it; or due to alcohol or drug use/ misuse.

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