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Draft MCA Code of Practice: summary

Updated 21 June 2022

This was published under the 2019 to 2022 Johnson Conservative government

Applies to England and Wales

This document is not statutory guidance. This document includes the chapter summaries from the draft Mental Capacity Act Code of Practice (‘Code’).

The information in this document is not comprehensive – it has been designed to provide an overview of the full Code.

Introduction

The Mental Capacity Act 2005 (‘the Act’) provides a statutory framework in England and Wales for supporting people aged 16 and over to make their own decisions. It sets out the legal framework for people who lack capacity to make decisions for themselves, or who have capacity and want to make preparations for a time when they may lack capacity in the future. It also sets out who can take decisions, in which situations, and how they should go about this. The Act came into force in 2007.

The legal framework provided by the Act is supported by a Code of Practice (‘the Code’), which provides guidance and information about how the Act works in practice.

Code of Practice

Section 42 of the Act requires the Lord Chancellor to produce a Code of Practice for the guidance of a range of people with different duties and functions under the Act. Section 43 requires that the Lord Chancellor must have consulted the Welsh Government and such other persons as he considers appropriate, before the Code is prepared or revised. The Code is also subject to the approval of Parliament and must have been placed before both Houses of Parliament for a 40-day period without either House voting against it. The Code of Practice has been produced in accordance with these requirements.

The Code has statutory force, which means that certain categories of people have a legal duty to have regard to it when working with or caring for adults who may lack capacity to make decisions for themselves.

Code of Practice summary

This document is not the MCA Code of Practice and is therefore not statutory guidance. This document includes the chapter summaries from the draft Code. The information in this document is not comprehensive – it has been designed to provide an overview of the full Code.

Glossary

A glossary of key terms and definitions can be found at the end of the document.

1. What is the Mental Capacity Act 2005?

The Mental Capacity Act 2005 (the Act) provides the legal framework for supporting people aged 16 and over to make their own decisions, alongside setting out the legal framework on how to make decisions on behalf of individuals who lack the mental capacity to do so for themselves. Everyone working with and/or caring for a person who may lack capacity to make a specific decision must comply with this Act when supporting or making a decision for that person. The same rules apply whether the decision is regarding a life-changing event or an everyday situation.

Quick summary

The Act’s starting point is that it should be assumed that a person has legal capacity to make a decision for themselves (the right to autonomy) unless it is established that they do not have capacity. A person is said to lack capacity if an assessment shows that they do not have capacity to make a decision at the time it needs to be made.

The Act also states that people must be given all practicable help and support to enable them to make their own decision, or to maximise their participation in any decision-making process.

The underlying philosophy of the Act is to empower people to make their own decisions where possible and to ensure that any decision made, or action taken, on behalf of someone who lacks the capacity to make the decision or act for themselves is made in their best interests.

The Act is intended to assist and support people who may lack capacity and to discourage anyone who is involved in caring for them from being overly restrictive or controlling. But the Act also aims to balance an individual’s right to make a decision for themselves with their right to be safeguarded from harm if they lack capacity to make a decision to protect themselves.

The Act, with the Mental Capacity (Amendment) Act 2019, also sets out the provisions for the lawful deprivation of liberty of someone who lacks capacity.

The Act sets out the core principles and framework for making decisions and carrying out actions in relation to a wide range of matters including personal welfare, healthcare and financial matters.

In this chapter summary, as throughout the Code, a person’s capacity (or lack of capacity) refers specifically to their capacity to make a particular decision at the time it needs to be made.

2. What are the statutory principles and how should they be applied?

The Act intends to enable and support people aged 16 and over who may lack capacity, to maximise their ability to make decisions. It aims to protect the rights and interests of people who lack capacity to make particular decisions, and enable them to participate in decision-making, as far as they are able to do so.

Section 1 of the Act sets out the 5 ‘statutory principles’ – the values that underpin the legal requirements in the Act. This chapter in the Code provides guidance on how people should interpret and apply the statutory principles when using the Act.

Quick summary

Every person has the right to make their own decisions if they have the capacity to do so. Family carers and healthcare or social care staff must assume that a person has the capacity to make decisions, unless it is established that the person lacks capacity.

Before concluding that an individual lacks capacity to make a particular decision, all practicable steps must have been taken to help them make their own decision.

A person who makes a decision that others think is unwise should not automatically be considered as lacking the capacity to make the decision.

Any act done for, or any decision made on behalf of, someone who lacks capacity must be in their best interests.

Any act done for, or any decision made on behalf of, someone who lacks capacity should be an option that is the least restrictive of their basic rights and freedoms, as long as it is still in their best interests.

3. How should people be helped to make their own decisions?

All practicable steps must be taken to help someone to make their own decisions before it can be concluded that they lack capacity to make that decision themselves (see statutory principle 2 – see chapter 2). In addition, as section 3(2) of the Act underlines, these steps (such as helping individuals to communicate) must be taken in a way which reflects the person’s individual circumstances and meets their particular needs.

Chapter 3 of the Code provides practical guidance on how to support people to make decisions for themselves, or to play as big a role as possible in decision-making. The chapter also offers practical guidance on how to ensure that the person is kept at the centre of the Liberty Protection Safeguards (LPS) process. 

Quick summary

To help someone make a decision for themselves, check the following points.

Providing information

Does the person have all the information they need to make a particular decision?

If they have a choice, have they been given information on all the alternatives, including not making a decision right away, or at all?

Communicating in an appropriate way

Could anyone else help with communication (for example, a family member, support worker, interpreter, speech and language therapist or advocate)?

Could information be explained or presented in a way that is easier for the person to understand (for example, by using simple language or visual aids)?

Have different methods of communication been explored if required, including non-verbal communication?

Making the person feel at ease

Are there particular locations where they may feel more at ease?

Are there particular times of day when the person’s understanding is better?

Could the decision be put off to see whether the person can make the decision at a later time when circumstances are right for them?

Supporting the person

Can anyone else help or support the person to make the decision?      

How is the person kept at the centre of the LPS process?

There are a number of decisions that need to be taken during the LPS process, including on:

• the person’s care or treatment
• the arrangements surrounding the care or treatment
• whether they wish to be supported by an Appropriate Person or Independent Mental Capacity Advocate (IMCA)

The person should always be supported to make those decisions as far as possible. Even if the person lacks the capacity to make one decision, they may still be able to make another.

What information does the person and their Appropriate Person or IMCA have the right to?

The Responsible Body has a duty to publish certain information, and to ensure that the person and their Appropriate Person (where relevant) understands the information. All information must be accessible to the person. 

The Responsible Body must also ensure that the person and their Appropriate Person understands certain information.

4. How does the Act define a person’s capacity to make a decision and how should capacity be assessed?

Chapter 4 of the Code explains what the Act means by ‘capacity’ and ‘lack of capacity’. It provides guidance on how to assess whether someone has the capacity to make a decision and suggests when professionals should be involved in the assessment.

Quick summary

Presuming someone has capacity

There is a presumption that people have the capacity to make their own decisions. If there is a proper reason to doubt that the person has capacity to make the decision, it is necessary to assess their capacity.

Understanding what is meant by capacity and lack of capacity

A person’s capacity must be assessed specifically in terms of their capacity to make a particular decision at the time it needs to be made.

It is important to take all possible steps to try to help people to make a decision for themselves (see chapter 2 of the Code, principle 2 and chapter 3 of the Code).

Assessing capacity

Anyone assessing someone’s capacity to make a decision will need to apply the test in the Act. It can be broken down into 3 questions:

1. Is the person unable to make the decision (with support if required)?

2. If they are unable, is there an impairment or disturbance in the functioning of their mind or brain?

3. Is the person’s inability to make the decision because of the impairment or disturbance?

A person is unable to make a decision if they cannot:

1. understand information about the decision to be made (the Act calls this ‘relevant information’)

2. retain that information in their mind (long enough to make the decision)

3. use or weigh that information as part of the decision-making process, or

4. communicate their decision (by any means)

For complex or major decisions, a more thorough assessment involving a professional may be required.

5. What does the Act mean when it talks about ‘best interests’?

When someone has capacity to make a decision the person should make that decision for themselves, with support if needed. When someone lacks capacity to make the decision, however, the Act says that any act done for, or any decision made on the person’s behalf, must be done, or made, in that person’s best interests.

Chapter 5 of the Code explains:

• what the Act means by ‘best interests’
• the things that should be considered when trying to work out what is in someone’s best interests
• how best interests decisions should be recorded

It also highlights some of the difficulties that might come up in working out what the best interests of a person who lacks capacity to make the decision actually are.

Quick summary

A decision-maker trying to work out the best interests of a person who lacks capacity to make a particular decision (‘lacks capacity’) should:

• identify the available options – consider the factors in the checklist set out in the Act including:

  • avoiding discrimination by not making assumptions about someone’s best interests simply on the basis of their age, appearance, condition or behaviour

  • identifying all relevant circumstances that the person who lacks capacity would take into account if they were making the decision or acting for themselves

  • assessing whether the person might regain capacity and if so, deciding whether the decision can wait until then

  • encouraging and enabling the person to participate in the decision-making process as much as possible

  • if the decision concerns life-sustaining treatment, not being motivated in any way by a desire to bring about the person’s death

  • finding out the person’s views, including their past and present wishes and feelings, beliefs, values and cultural background and any other factors they would be likely to consider if they were making the decision for themselves

  • consulting others who are close to the person, involved in their care or treatment or acting as attorney or deputy for their views about the person’s best interests and to see if they have any relevant information about the persons wishes and feelings, beliefs, values and cultural background

  • avoid restricting the person’s rights by seeing if there are other options that may be less restrictive of the person’s rights and explaining reasoning if the least restrictive option is not pursued

• weigh up all of these factors in order to work out what is in the person’s best interests and consider whether a record of the decision needs to be made

6. What protection does the Act offer for people providing care or treatment?

Section 5 of the Act allows carers, healthcare and social care staff to carry out certain tasks without fear of liability if they are acting in the person’s best interests under section 4. These tasks involve the personal care, healthcare or treatment of people who lack capacity to consent to them. The aim is to give legal backing for acts that need to be carried out in the best interests of the person who lacks capacity to consent.

Chapter 6 explains how the Act provides protection from liability, how that protection works in practice and where it is restricted or limited. It also explains when a carer can use a person’s money to buy goods or services.

Quick summary

The following steps list all the things that people providing care or treatment should bear in mind to ensure they are protected by the Act.

Acting in connection with the care or treatment of someone who lacks capacity to consent

Is the action to be carried out in connection with the care or treatment of a person who lacks capacity to give consent to that act?

Who is carrying out the action?

Is it appropriate and proportionate for that person to do so at the relevant time?

Does it involve major life changes for the person concerned? If so, it will need special consideration and a record of the decision will need to be made.

Should the court be asked to make the decision?

Checking whether the person has capacity to consent

Have all possible steps been taken to try to help the person make a decision for themselves about the action?

Has the test of capacity been applied?

Are there reasonable grounds for believing the person lacks capacity to give permission?

Acting in the person’s best interests

Has the best interests checklist (see chapter 5) been applied and all relevant circumstances considered?

Is a less restrictive option available?

Is it reasonable to believe that the proposed act is in the person’s best interests?

Understanding possible limitations on protection from liability

If restraint is being considered, is it necessary to prevent harm to the person who lacks capacity, and is it a proportionate response to the likelihood of the person suffering harm – and to the seriousness of that harm?

Could the restraint be classed as a deprivation of the person’s liberty?

Does the action conflict with a decision that has been made by an attorney or deputy under their powers?

Paying for necessary goods and services

If someone wishes to use the person’s money to buy goods or pay for services for someone who lacks capacity to do so themselves, are those goods or services necessary and in the person’s best interests?

Is it necessary to take money from the person’s bank or building society account or to sell the person’s property to pay for goods or services? If so, formal authority will be required.

7. What is the role of the Court of Protection?

This chapter describes the role of the Court of Protection. It explains the powers that the court has and the types of decisions and declarations it can make. It also explains when applications must or should be made to court, who should bring an application and how the court deals with cases.

Quick summary

The Court of Protection has powers to:

• decide whether a person has capacity to make a particular decision for themselves

• make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions

• make decisions relating to deprivations of liberty

• appoint deputies to make decisions for people lacking capacity

• decide whether a lasting power of attorney (LPA) or enduring power of attorney (EPA) is valid

• remove deputies or attorneys

In some cases, the Court of Protection must be asked to make the relevant decision, while in others, the Court of Protection may be asked to make a decision depending on the circumstances.

In relation to LPS authorisations, the court can consider the following:

• whether Schedule AA1 of the Act applies to the arrangements, or whether the authorisation conditions are met

• what period the authorisation has effect for

• what the authorisation relates to

The court may also consider the application of section 4B of the Act. This section enables decision-makers to take steps to deprive a person of their liberty, without an authorisation, where certain conditions are met.

8. Lasting powers of attorney

This chapter explains what lasting powers of attorney (LPAs) are and how they should be used. It sets out the types of decisions that people can appoint attorneys to make and when an LPA can and cannot be used. It also sets out the duties and responsibilities of attorneys, the standards required and measures for dealing with attorneys who do not meet appropriate standards.

This chapter also explains how LPAs differ from enduring powers of attorney (EPAs).

Quick summary

An LPA allows someone to appoint a trusted person or people to make financial and/or personal welfare decisions on their behalf.

An LPA must be registered with the Office of the Public Guardian (OPG) before it can be used.

When acting under an LPA, attorneys must:

• make sure that the Act’s statutory principles are followed

• check whether the person has the capacity to make that particular decision for themselves. If they have capacity:

  • a personal welfare LPA cannot be used – the person must make the decision

  • a property and affairs LPA can be used if the donor has specified that in the LPA, and if they have given permission to make the decision

• ensure anything done under the authority of the LPA is in the person’s best interests

• have regard to guidance in this code of practice that is relevant to the decision that needs to be made

• only act within the limits of their power and with regard to any instructions in the LPA

• fulfil their responsibilities and duties to the person who lacks capacity

9. What is the role of court-appointed deputies?

This chapter describes the role of court-appointed deputies and the role of the OPG in supervising deputies. It looks at how the court appoints a deputy (or deputies) to act and make decisions on behalf of someone who lacks capacity to make those decisions. In particular, it gives guidance on a deputy’s duties, their supervision and the consequences of not carrying their duties out responsibly.

See the OPG website for detailed guidance for deputies

Quick summary

The Court of Protection has powers to appoint deputies to make decisions for people lacking capacity to make those decisions, and to remove deputies who fail to carry out their duties.

Anyone acting as a deputy must:

• follow the Act’s statutory principles (see chapter 2), including:

  • considering whether the person has capacity to make a particular decision for themselves – if they do, the deputy should allow them to do so unless the person agrees that the deputy should make the decision

  • taking all possible steps to try to help a person make the particular decision

• always make decisions in the person’s best interests and have regard to guidance in the Code of Practice that is relevant to the situation

• only make those decisions that they are authorised to make by the order of the court

• fulfil their duties towards the person concerned (in particular the duty of care and fiduciary duties to respect the degree of trust placed in them by the court)

• keep correct accounts of all their dealings and transactions on the person’s behalf and periodically submit these to the Public Guardian as directed, so that the OPG can carry out its statutory function of supervising the deputy

10. What is the Independent Mental Capacity Advocate role?

This chapter describes the circumstances where the Act requires an Independent Mental Capacity Advocate (IMCA) to be instructed or appointed to represent and support someone who lacks the relevant mental capacity to make a decision.  

Advocacy is a way of supporting an individual to have their voice heard and ensure their rights are upheld even if the individual is unable to express their wishes, feelings or beliefs. IMCAs work with and support people who lack the relevant capacity and represent their views to those who are working out their best interests.

The purpose of the IMCA under sections 37, 38 and 39 of the Act is to advocate for and support people who lack the capacity to make important decisions in certain cases about serious medical treatment, and the provision of long-term accommodation (see below for more information). In these circumstances, an IMCA would be instructed if the person has no family or friends that it would normally be appropriate to consult in determining the person’s best interests.

Representation and support are also key safeguards offered by LPS to ensure that a person’s human rights are protected. IMCAs play a key role in this, representing and supporting the person throughout the LPS process and while an LPS authorisation is in place. In some circumstances, IMCAs will also support the person’s Appropriate Person to represent and support the person. (See more information on the Appropriate Person role under LPS in chapter 15.)

Quick summary

Understanding the role of the IMCA service in decisions about serious medical treatment or accommodation (sections 37 to 39 of the Act)

An IMCA must be instructed to provide independent advocacy and safeguards for people who lack capacity to make certain important decisions and have no one else (other than paid staff) whom it would be appropriate to consult to determine what is in the person’s best interests.

IMCAs must be able to act independently of the person or body instructing them.

Instructing and consulting an IMCA for decisions about serious medical treatment or accommodation (sections 37 to 39 of the Act)

IMCAs can only work with an individual once they have been instructed by the appropriate body. For accommodation decisions, this will be the local authority or NHS body responsible for the arrangements. For serious medical treatment decisions this will be the NHS body that has responsibility for the person’s treatment.

An NHS body or local authority must instruct and consult an IMCA when they have no one to consult (other than paid staff) to determine the best interests of a person who lacks capacity to make the decision, whenever:

• an NHS body is proposing to provide serious medical treatment, or

• an NHS body or local authority is proposing to arrange accommodation (and/or a change of accommodation) in hospital or a care home or residential accommodation, and:

  • the person will stay in hospital longer than 28 days, or

  • they will stay in the care home or residential accommodation for more than 8 weeks

An IMCA may be instructed when an NHS body or local authority is proposing to review accommodation arrangements which have been provided for more than 12 weeks.

Ensuring an IMCA’s views are taken into consideration in decisions about serious medical treatment or accommodation (sections 37 to 39 of the Act)

The IMCA’s role is to independently represent and support the person who lacks the relevant capacity. Their views should not be influenced by how the IMCA service is funded.

In order to carry out their role, IMCAs have a right to see and take copies of relevant healthcare and social care records.

Any information or reports provided by an IMCA must be taken into account when determining whether a proposed decision is in the person’s best interests.

Criteria to become an IMCA

IMCAs must have the appropriate experience, training and character, as well as other requirements as specified in the Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (General) Regulations 2006.

IMCA services are often provided by advocacy organisations that are independent from local authorities, NHS bodies and health boards.

Some IMCAs are freelance and can be approved by the local authority to act as an IMCA.

Appointing an IMCA under the LPS

In cases where the person has no family or friends suitable to represent and support them the Responsible Body must take all reasonable steps to appoint an IMCA to represent and support the person, in most cases.

If someone does have someone else to represent and support them, this role is called an Appropriate Person. In some cases, an IMCA will be appointed to support the Appropriate Person.

Understanding the role of the IMCA in the LPS

The aim of the IMCA under the LPS is to represent and support an individual, or their Appropriate Person, throughout the LPS authorisation process and while any LPS authorisation is in force.

The IMCA should represent the wishes and feelings of the person to the decision-maker.

The IMCA should ensure that person’s rights are upheld.

11. What does the Act say about advance decisions to refuse treatment?

This chapter explains what to do when somebody has made an advance decision to refuse treatment. It sets out what the Act means by an ‘advance decision’ and has guidance on making, updating and cancelling advance decisions. It also sets out:

• how to check whether an advance decision exists and is valid and applicable in the circumstances
• the responsibilities of healthcare professionals when an advance decision exists
• how to handle disagreements about advance decisions

Quick summary

An advance decision enables anyone aged 18 and over, who has capacity, to refuse specified medical treatment for a time in the future when they may lack the capacity to consent to or refuse that treatment.

An advance decision to refuse treatment must be valid and applicable to current circumstances. If it is, it has the same effect as a decision that is made by a person with capacity and healthcare professionals must follow the decision.

Healthcare professionals will be protected from liability if they:

• stop or withhold treatment because they reasonably believe that an advance decision exists, and that it is valid and applicable

• treat a person because, having taken all practicable and appropriate steps to find out if the person has made an advance decision to refuse treatment, they do not know or are not satisfied that a valid and applicable advance decision exists

Specific requirements apply for advance decisions which refuse life-sustaining treatment.

12. What is the definition of a Deprivation of Liberty?

The LPS can only be used to authorise arrangements that give rise to a deprivation of liberty. This chapter introduces and explains what is meant by a deprivation of liberty.

A LPS authorisation should only be sought if a less restrictive alternative is not available. Therefore, it is important to first consider whether arrangements can be put in place which do not amount to a deprivation of liberty.

Further legal developments may occur after this guidance has been issued and health and social care staff need to keep themselves informed of legal developments that may have a bearing on their practice.

Quick summary

Freedom to leave

‘Freedom to leave’ means the ability to leave permanently, for example in order to live where, and with whom, they choose.

Continuous supervision and control

‘Continuous supervision and control’ means the person being prevented from doing the things they want and not being left alone for significant periods of the day.

Consent and capacity

The test of capacity where the arrangements are being carried out in the person’s own home is likely to lower. 

Consent to the deprivation of liberty can be given in advance in cases where valid consent has been given and the circumstances have not changed since.

Medical treatment

Deprivation of liberty will not occur in cases where medical treatment for a physical disorder is being provided, in any setting, which is materially the same as that provided to a person without a mental disorder. 

13. What is the process for authorising arrangements under the Liberty Protection Safeguards?

The LPS include a process by which arrangements that may amount to a deprivation of liberty for a person’s care or treatment are considered and may be authorised. If an authorisation is given, the next stages of the process are regular reviews of the authorisation and, where appropriate, the renewal of an authorisation. This chapter covers this process.

Quick summary

How to recognise the need for an LPS authorisation and how to trigger the process

If the proposed arrangements around the person’s care or treatment may amount to a deprivation of liberty, then the LPS process should be triggered. Anyone can trigger the process.

How LPS interacts with other health and care planning

If the person’s care or treatment is being arranged under a different legal framework, it may be the case that the LPS assessments and reviews should be carried out alongside the person’s main health or care plan processes.

The actions required by the Responsible Body once the LPS have been triggered

Once the LPS have been triggered the Responsible Body should:

• consider whether the case is suitable for the LPS

• establish if it is the correct Responsible Body

• consider representation and support for the person by an Appropriate Person or IMCA 

• commission the medical, capacity, and necessary and proportionate assessments and determinations

• carry out the consultation to establish the person’s wishes and feelings

Once the consultation and assessments and determinations have been completed, the pre-authorisation review must take place. The pre-authorisation review is followed by the final authorisation, carried out by the Responsible Body.

Once an authorisation is in place

There are limited occasions where the Responsible Body may vary an authorisation, where the arrangements themselves are not fundamentally changing.

The Responsible Body must set out a schedule for reviews in the authorisation record.

Authorisations can be renewed, where appropriate, for the first time for up to 12 months. Thereafter an authorisation can be renewed for a period of up to 36 months.

14. What is the role of a Responsible Body in the Liberty Protection Safeguards process?

The Responsible Body is the organisation that oversees the LPS process.

This chapter describes the responsibilities of a Responsible Body and provides information on how to decide which organisation is the Responsible Body. This chapter also provides information on arrangements made regarding cross-national borders in the United Kingdom.

The details of the overall LPS process are set out in chapter 13. This chapter provides information on the role of the Responsible Body within the LPS system.

Quick summary

Which organisations can be a Responsible Body?

The term ‘Responsible Body’ generally refers to an organisation, rather than an individual.

Examples of organisations that will be eligible to be Responsible Bodies include:

• NHS trust or NHS foundation trust
• local authority
• clinical commissioning group (CCG)
• local health board or others

How to work out who the Responsible Body is

There can only be one Responsible Body for any authorisation. The rules for identifying the Responsible Body vary according to whether the arrangements are being carried out mainly in hospital, or the person is in receipt of NHS Continuing Healthcare (NHS CHC), or other cases.

The ‘No Wrong Door’ principle means that if a referral is made to an organisation that is not the correct organisation to act as the Responsible Body, the organisation should pass this referral on to the correct Responsible Body.

Duty of Responsible Body to provide information

Each Responsible Body has a general duty to publish information about:

• the effect of an authorisation

• the process for authorising arrangements

• when an IMCA should be appointed

• the role of the Appropriate Person

• when an Approved Mental Capacity Professional (AMCP) may get involved in a case

• the right to make an application to the Court of Protection

• reviews of an authorisation

15. What is the role of the Appropriate Person?

This chapter describes the Appropriate Person role in the LPS.

The Appropriate Person is a statutory role. The Appropriate Person must provide representation and support for the person during the LPS process and during any authorisation.

The Appropriate Person role is normally carried out by someone who is close to the person. When an individual is identified for the role, the relevant Responsible Body must determine if the individual is suitable for the role before appointing them. The individual should not receive remuneration for fulfilling the Appropriate Person role, and the individual must consent to being appointed to the role.

Quick summary

Who can be an Appropriate Person

It is the Responsible Body’s responsibility to determine if there is someone suitable to fulfil the requirements of the Appropriate Person role. The identified individual must consent to taking on the role before they are appointed.

The person must consent to the individual being appointed to the role of Appropriate Person. If they lack the capacity to consent, the Responsible Body should make a best interests decision for the person.

If there is not an individual suitable to undertake the Appropriate Person role, in most cases, the Responsible Body must appoint an IMCA.

What is the role of the Appropriate Person

The Appropriate Person will need to understand the LPS process to help ensure that the person’s wishes and feelings are properly considered. The Appropriate Person has the right to access certain information to help them with this.

The Appropriate Person provides representation and support for the person and supports them throughout the LPS process. The Appropriate Person should ensure that the person is supported to understand the different stages of the authorisation process and the authorisation itself.

The Appropriate Person’s rights

The Appropriate Person also has the right, in certain circumstances, to be supported in the role by an IMCA. The Responsible Body also has a responsibility to support the Appropriate Person.

16. What are the assessments and determinations required for the Liberty Protection Safeguards?

There are 3 assessments and determinations which must be carried out to determine whether the authorisation conditions are met. The Responsible Body needs this information when it is considering whether or not to authorise a case.

The relevant regulations in England and Wales set out the qualifications and experience that a professional is required to have in order to undertake each of the 3 assessments.

The person must be assessed against the authorisation conditions. In order to accept that authorisation, a determination must be made on whether the assessment has shown the LPS authorisation conditions are met.

Quick summary

LPS assessments and care or treatment assessments and reviews

A person who is being assessed under the LPS may also be eligible for an assessment or review under other legislation, such as the Care Act 2014. Where this is the case, assessments should be carried out together, as far as practicable and appropriate.

Assessments and determinations required for the LPS

Three assessments and determinations must be carried out by no less than 2 professionals before a Responsible Body can consider an authorisation to deprive someone of their liberty. These are:

1. the capacity assessment and determination of whether the person lacks capacity to consent to the arrangements

2. the medical assessment and determination of whether the person has a mental disorder

3. an assessment and determination of whether the arrangements are necessary to prevent harm to the person and proportionate in relation to the likelihood and seriousness of harm to the person

For a Responsible Body to give an authorisation, all of these authorisation conditions must be met.

There are some instances where it may be appropriate to use a previous medical or capacity assessment and determination, or an equivalent assessment.

What happens to assessments at renewal or when there is a substantial change in the person’s circumstances

When the authorisation period is coming to an end and if the Responsible Body is satisfied that the authorisation conditions continue to be met, the authorisation may be renewed without further assessments.

However, if, depending on the circumstances of the case, the Responsible Body is not satisfied that the authorisation conditions are still met, further assessments may be needed.

A review must be carried out if the Responsible Body becomes aware that a person’s condition or circumstances have significantly changed, and a new authorisation may be needed.

17. What is the consultation duty in the Liberty Protection Safeguards process?

The LPS are designed to keep the person at the centre of the process. The main purpose of the consultation duty is therefore to find out about the person’s wishes and feelings about the proposed arrangements.

The Responsible Body also has a duty to publish information about the consultation process.

Quick summary

The person and any people interested in the person’s welfare must be consulted by the Responsible Body:

• during the assessment process of an initial authorisation
• when a variation for an authorisation is being considered
• when an authorisation is being considered ahead of renewal

Additionally, where an AMCP is carrying out the pre-authorisation review they must also consult the person and any people interested in the person’s welfare, as well as others.

The person may be supported by an IMCA or Appropriate Person during the consultation. They, or a family member or friend, may be able to advise how best to communicate with the person during the consultation process.

The evidence that is gained from the consultation should be recorded and must be considered when the Responsible Body decides whether to authorise the arrangements.

18. What is the role of an Approved Mental Capacity Professional?

The Approved Mental Capacity Professional (AMCP) is a specialist role that provides enhanced oversight for those people that need it most.

A case must be referred to an AMCP if there is reasonable belief a person does not wish to reside or receive care or treatment in a certain place, and the arrangements provide for this.

Quick summary

When should a referral be made to an AMCP?

A case must be referred to an AMCP if:

• there is reasonable belief a person does not wish to reside or receive care or treatment in a place, and the arrangements provide for this

• the arrangements are being carried out mainly in an independent hospital

• a case is referred to the AMCP and the AMCP accepts

The role of an AMCP and what they do

Where the referral criteria are met, the case must be referred to an AMCP. If the AMCP accepts the case, they will look at the assessments and consultation to determine whether the authorisation conditions are met. They will also meet with the person and anyone who was consulted and take any further action they deem necessary, including proposing less restrictive arrangements.

Once the AMCP has assessed their case, they will then advise the Responsible Body whether or not the authorisation conditions are met.

AMCPs will also carry out reviews where it becomes clear, after an authorisation is given, that the person does not wish to reside or receive care or treatment in the place.

The duty of the local authority to approve AMCPs and to ensure there are enough AMCPs for its area

Local authorities have a duty to ensure that there are enough AMCPs for the cases in their area. Local areas should work together to determine how many AMCPs are likely to be required by each Responsible Body, in order for local authorities to plan.

Who is eligible to become an AMCP, and training requirements?

Professionals who can become AMCPs are:

• nurses

• social workers

• psychologists

• speech and language therapists

• occupational therapists

AMCPs are required to complete initial training and must seek approval from a local authority before they can begin to practice. Once approved, AMCPs must compete 18 hours of further training per year to continue approval.

19. What is section 4B?

Except in exceptional circumstances, it is unlawful to place restrictions which amount to a deprivation of liberty on a person before a decision to authorise such arrangements has been made by the Responsible Body or a relevant decision is made by the court. Exceptional circumstances are circumstances where it is necessary to take steps to carry out life-sustaining treatment or prevent a serious deterioration in the person’s condition.

If certain conditions are met, section 4B of the Act provides the legal basis for decision-makers to take steps to place restrictions on a person. This chapter sets out the conditions which must apply before section 4B can be relied upon.

Quick summary

Four conditions must be met for the legal authority of section 4B to be relied upon. These are that:

1. the steps consist of, or are for purpose of, giving a life-sustaining treatment or carrying out a vital act

2. the steps are necessary in order to give the life-sustaining treatment or carry out the vital act

3. the decision-maker believes that the person lacks capacity to consent to the steps taken

4. a relevant decision is being sought from the court, a Responsible Body is determining whether to authorise arrangements under the LPS, or there is an emergency

Section 4B of the MCA provides the legal basis for decision-makers to take steps to place restrictions on a person in these scenarios.

The legal authority provided by section 4B can only be relied upon in very limited circumstances and should not be used on a routine basis.

Section 4B only enables steps to be taken for giving life-sustaining treatment or a vital act. For the purposes of section 4B, it is unlawful if steps are carried out which deprive the person of liberty which are not for the purposes of giving life-sustaining treatment or a vital act.

20. Monitoring and reporting on the Liberty Protection Safeguards scheme

The deprivation of a person’s liberty is a significant issue. The LPS are designed to ensure that people are only deprived of their liberty if this is necessary and proportionate. In order to provide reassurance that the LPS are being operated correctly, it is important that there is effective monitoring of and reporting on the operation of the scheme.

Quick summary

Who the bodies are that are responsible for monitoring and reporting on the Liberty Protection Safeguards in England and Wales

The bodies responsible for monitoring and reporting on LPS in England are:

• the Care Quality Commission (CQC) (for adults)
• the Office for Standards in Education, Children’s Services and Skills (Ofsted) (for 16 to17 year olds)

In Wales, the bodies are Health Inspectorate Wales (HIW) and Care Inspectorate Wales (CIW). In respect of education settings, the function is also performed by Estyn.

Who must provide data to the monitoring bodies and what this should consist of in order to carry out their monitoring and reporting responsibilities

The monitoring bodies have a duty to monitor and report on the operation of the LPS. To carry out this duty, Responsible Bodies are required to regularly notify the monitoring bodies when they have received an LPS referral and are considering whether to authorise arrangements or not.

They should also regularly notify the Responsible Body when an authorisation is either given, not granted, renewed or has come to an end.

The powers that the monitoring bodies have that they may exercise to carry out their monitoring and reporting responsibilities

The monitoring bodies have powers to:

• visit settings where an authorised deprivation of liberty is being carried out. The monitoring bodies may require relevant consent in order to visit the place

• meet with the person that the LPS authorisation applies to. The monitoring bodies will need the consent of the person in order to meet them, or if they lack the relevant capacity to consent then a best interests decision may be needed in accordance with section 4 of the Act

• require access to and inspect records relating to the care and treatment of that person before, during or after they visit the setting

• meet any person engaged in caring for a person the LPS authorisation applies to, or a person interested in their welfare

The monitoring bodies will report annually, summarising their activity and findings about the operation of LPS.

21. How does the Act apply to children and young people?

Chapter 21 explains the position of young people aged 16 and 17 years old under the Act, including detail on how the LPS scheme will apply to 16 and 17 year olds. This chapter also looks at the few parts of the Act that may affect children under 16 years of age.

Within this Code summary, ‘children’ refers to people aged below 16. ‘Young people’ refers to people aged 16 and 17. This differs from the Children Act 1989, the Social Services and Well-being (Wales) Act 2014 and the law more generally, where the term ‘child’ is used to refer to people aged under 18.

In some places this chapter also refers to the Special Educational Needs and Disability (SEND) system for people up to the age of 25. It will discuss the use of Education, Health and Care Plans (EHC plan) in England, and Individual Development Plans (IDP) in Wales.

Chapter 21 does not deal with research, which is covered in chapter 26 of the Code.

Quick summary

Young people aged 16 and 17 years old

Most of the Act applies to young people aged 16 and 17 years old, who may lack capacity.

There are 3 exceptions:

1. only people aged 18 and over can make a lasting power of attorney (LPA)

2. only people aged 18 and over can make an advance decision to refuse medical treatment

3. the Court of Protection may only make a statutory will for a person aged 18 and over

Care or treatment for young people aged 16 and 17 years old

The same principles and approach that apply to adults apply to determine the best interests regarding care or treatment of a young person who lacks capacity to make a decision. This means considering the factors set out in the best interests checklist (see chapter 5) to ascertain what is right for the young person when the decision needs to be made.

Professionals may consider it more appropriate, due to the circumstances of the case, to rely upon the consent of a person with parental responsibility regarding the young person’s care and treatment. Professionals should be clear and explicit as to which framework is appropriate and why.

Children under 16 years old

The Act does not generally apply to people under the age of 16.

There are 2 exceptions:

1. the Court of Protection can make decisions about a child’s property or finances (or appoint a deputy to make these decisions) if the child lacks capacity to make such decisions and is likely to still lack capacity to make financial decisions when they reach the age of 18

2. offences of ill treatment or wilful neglect of a person who lacks capacity within section 2(1) can also apply to victims younger than 16 years old (section 44)

LPS and 16 and 17 year olds

The LPS, together with the other provisions of the Act, apply to any person aged 16 or over.

Chapter 21 focuses on the LPS processes as they affect young people and those aged between 18 and 25. It also considers the relationship of LPS with other legal frameworks which affect these age groups such as the Children Act 1989 and Social Services and Well-being (Wales) Act 2014. It sets out the role of those with parental responsibility in supporting a young person, the role of health and social care professionals working with young people, and the process for the use of LPS for young people.

22. What is the relationship between the Mental Capacity Act and the Mental Health Act 1983?

Chapter 22 explains the relationship between the MCA and the Mental Health Act 1983 (MHA). It:

• describes how the MCA may apply to people lacking the relevant capacity who are also subject to the MHA
• explains when doctors cannot give certain treatments to someone who lacks capacity to consent to them
• sets out the position in relation to the MHA

This chapter does not provide a full description of the MHA. The MHA has its own codes of practice, for both England and Wales, to guide people about how to use it.

Where the LPS and the MHA meet, there is an interface. Decision-makers may need to decide which is the most appropriate regime to deprive a person of their liberty under, or if the person is subject to certain sections of the MHA whether an LPS authorisation is also required. The interface between these 2 regimes only occurs in a very small number of specific cases.

Quick summary

People who lack relevant mental capacity can have mental health problems like everyone else and may need to be treated under the MHA. The MCA applies to people subject to the MHA in the same way as it applies to anyone else, with 4 exceptions:

1. If someone is detained under the MHA, decision-makers cannot normally rely on the MCA to give treatment for a mental health problem or make decisions about that treatment on that person’s behalf.

2. If somebody can be treated for their mental disorder without their consent because they are detained under the MHA, healthcare staff can, with some exceptions relating to more invasive treatments, administer treatment to them even if it goes against an advance decision to refuse that treatment.

3. If a person is subject to guardianship under the MHA, the guardian has the exclusive right to take certain decisions, including where the person is to live.

4. IMCAs do not have to be involved in decisions about serious medical treatment or long-term accommodation, if those decisions are made under the MHA.

The interface between LPS and the MHA in hospitals

In certain situations, either the LPS or the MHA could be relied upon to deprive a person of their liberty when they are admitted to hospital.

Where the relevant conditions are met, a decision must be made between the MHA and the LPS. This decision should be based on the circumstances of the case.

Community MHA patients and the LPS

Some people may be under community arrangements under the MHA, where the LPS may still be applicable.

If the person is under section 17 leave and is not under the custody of someone for that leave, then the LPS could be used to authorise arrangements around their care or treatment in the community, if they amount to a deprivation of liberty.

Likewise, if the person is under a community treatment order and needs arrangements put in place that amount to a deprivation of liberty, the LPS could be used to authorise those arrangements.

The MHA learning disabilities exclusion and the LPS

In some cases, a person with learning disabilities is excluded from certain sections of the MHA. However, this exclusion does not apply to the LPS. 

23. What means of protection exist for people who lack capacity to make a decision for themselves?

Chapter 23 describes the different agencies that exist to help make sure that people who lack capacity to make a decision for themselves are protected from abuse and neglect. It also explains the services those agencies provide and how they supervise people who provide care for or make decisions on behalf of people who lack capacity. Finally, it explains what somebody should do if they suspect that somebody is abusing an adult or young person who lacks capacity.

Quick summary

Everyone has a role to play in safeguarding people who lack capacity. Always report suspicions of abuse or neglect of a person who lacks capacity to the relevant agency.

Concerns about a person who lacks capacity being at risk of abuse or neglect

If there is a good reason to suspect that someone has committed a crime against a person who lacks capacity, such as theft, physical or sexual assault or domestic abuse, contact the police.

In addition, contact adult social care or children and young people’s services, as relevant, so that they can work with the police and support the person at risk during the investigation.

If someone is not being looked after properly, contact adult social care or children’s services, as relevant.

Concerns about an attorney or deputy

If someone is concerned about the actions of an attorney or deputy, they should contact the Office of the Public Guardian.

Concerns about care or treatment

Where there is a concern about the healthcare or social care provided to a person who lacks capacity, there are formal and informal ways of complaining about the care or treatment. 

Concerns about an appointee

When someone is concerned about the collection or use of social security benefits by an appointee on behalf a person who lacks capacity, they should contact the relevant agency of the Department for Work and Pensions.

24. What are the best ways to settle disagreements and disputes about issues covered in the Act?

Sometimes people will disagree about a person’s capacity to make a decision, what is in a person’s best interests or a decision or action someone is taking on behalf of a person who lacks capacity.

It is in everybody’s interests to settle disagreements and disputes quickly and effectively, with minimal stress and cost. Chapter 24 sets out the different options available for settling disagreements. It also suggests ways to avoid letting a disagreement become a serious dispute. Finally, it sets out when it might be necessary to apply to the Court of Protection and when somebody can get legal funding.

Where arrangements amount or may amount to a deprivation of liberty, the person, and other individuals on their behalf, have a right to challenge proposed or authorised authorisation. They can also challenge the manner in which the LPS has been implemented. Concerns about the arrangements can be raised at any time in the LPS process.

Quick summary

When disagreements occur about issues that are covered in the Act, it is best to try and settle them before they become serious.

Advocates may be able to help settle a disagreement by representing the person who lacks capacity and ensuring their voice is heard.

Some disagreements can be effectively resolved by mediation.

Where there is a concern about healthcare or social care provided to a person who lacks capacity, there are formal and informal ways of complaining about the care or treatment.

When other methods of resolving disagreements are not appropriate, the matter can be referred to the Court of Protection.

There are some decisions that should always be referred to the Court of Protection.

What disputes may arise in terms of the LPS?

Anyone can raise a concern about the LPS process or about the arrangements, including the person and their Appropriate Person or IMCA.

The Appropriate Person or IMCA should ascertain the person’s wishes and feelings about the arrangements. If the person wishes to, they should be supported to make an application to the Court of Protection.

In some cases, even if the person does not wish to, it may still be necessary for the Appropriate Person or IMCA to make an application to the court.  

The person or anyone else may have concerns about the way in which the LPS process is implemented. Responsible Bodies should have appropriate channels for dealing with such complaints.

25. What rules govern access to information about a person who lacks capacity?

Chapter 25 gives guidance on what personal information about someone who lacks capacity people involved in their care have the right to see, and how they can access that information. This chapter is only a general guide and does not give detailed information about the law. Nor does it replace professional guidance or the guidance of the Information Commissioner’s Office on the UK General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA). Where necessary, people should take legal advice.

This chapter is mainly for people such as deputies and attorneys who care for or represent someone who lacks capacity to make specific decisions and in particular, lacks capacity to allow information about them to be disclosed. Professionals have their own codes of conduct, and they may have the support of information specialists in their organisations.

Quick summary

The personal information someone might be able to see about someone who lacks the capacity to give consent will depend on:

• whether the person requesting the information is acting as an agent (a representative recognised by the law, such as an attorney or deputy) for the person who lacks capacity or whether there is a relevant court order in place

• whether disclosure is in the best interests of the person who lacks capacity or whether there is another lawful reason for disclosure

• what type of information has been requested

An attorney or a deputy can ask to see information concerning the person they are representing, as long as the information helps them to make decisions that they have the legal authority to make. An attorney, where necessary, should be consulted on decisions outside of their remit.

Where a person has no legal authority to request information about someone who lacks capacity, whether they can access or share it will depend on the situation.

Healthcare and social care staff may disclose information about somebody who lacks capacity only when it is in the best interests of the person concerned to do so, or when there is some other, lawful reason for them to do so.

26. How does the Act affect research projects involving a person who lacks or may lack capacity?

It is important that research involving people who lack or may lack capacity can be carried out, and that it is carried out properly. Without it, we would not improve our knowledge of the causes, treatment and care of people with impairing conditions or our understanding of their perspectives and experiences.

Chapter 26 gives guidance on involving people who lack capacity to consent and people who need support to consent to take part in research. It sets out:

• how to support people to make a decision about whether or not to take part in research

• the legal requirements people must meet if their research project involves somebody who lacks capacity

• the specific responsibilities of researchers and what should happen if a research participant loses capacity during a research project

This chapter applies to research in relation to people aged 16 and over. There is NHS guidance on consent for children and people aged 16 and 17.

Quick summary

Where there is reason to doubt whether a person has capacity to consent to participate in research, researchers are responsible for determining whether or not the person is able to give informed consent.

If a person lacks capacity to consent to their involvement, the Act makes provisions to protect them. The Act’s provisions for research that includes people who lack capacity to consent to their involvement cover:

• when research can be carried out

• the ethical opinion and research approval process

• respecting the wishes and feelings of people who lack capacity

• other safeguards to protect people who lack capacity

• how to engage with a person who lacks capacity

• how to engage with carers and other relevant people

The research provisions in the Act apply to all research that is intrusive. ‘Intrusive’ means research that would be unlawful if it involved a person who had capacity but had not consented to take part. The provisions do not apply to Clinical Trials of Investigational Medicinal Products (CTIMPS).

Glossary

Term	Definition
Acts in connection with care or treatment	Tasks carried out by carers, healthcare or social care staff which involve the personal care, healthcare or medical treatment of people who lack capacity to consent to them – referred to in the Act as ‘section 5 acts’.
Adult safeguarding procedures	Procedures devised by local authorities, in conjunction with other relevant agencies, to investigate and deal with allegations of harm (including abuse and ill treatment) of adults with care and support needs, and to put in place safeguards to provide protection from harm.
Advance decision to refuse treatment	A decision to refuse a specified treatment made in advance by a person who has capacity to do so. This decision will then apply at a future time when that person lacks capacity to consent to, or refuse, the specified treatment. This is set out in section 24(1) of the Act. Specific rules apply to advance decisions to refuse life-sustaining treatment.
Advocacy	Advocacy is a way of supporting an individual to have their voice heard and ensure their rights are represented even if the individual is unable to express their wishes, feelings or beliefs.
Agent	A person authorised to act on behalf of another person under the law of agency. Attorneys appointed under an LPA or EPA are agents and court-appointed deputies are deemed to be agents and must undertake certain duties as agents.
Appointee	Someone appointed under social security regulations to claim and collect social security benefits or pensions on behalf of a person who lacks capacity to manage their own benefits. An appointee is permitted to use the money claimed to meet the person’s needs.
Appropriate body	A committee which is established to advise on, or on matters which include, the ethics of intrusive research in relation to people who lack capacity to consent to it, and is recognised for those purposes by the Secretary of State (in England) or the National Assembly for Wales (in Wales).
Appropriate Person	A voluntary role, designed to allow mainly friends and family members to provide representation and support for the person who is referred to the Liberty Protection Safeguards or who is subject to an authorisation.
Approved Mental Capacity Professional and AMCP	A specialist role that provides enhanced oversight to LPS cases that need it most. In these cases, an AMCP will determine whether the authorisation conditions that are required to authorise a deprivation of liberty are met. In some cases, they will also carry out reviews.
Arrangements	The arrangements enabling the person’s care or treatment to be carried out and which give rise to a deprivation of liberty, which are proposed or being carried out. They may include where the person is residing, what care or treatment they are receiving, or the means and manner of transport taken between particular places.
Assessment and determination	Three assessments must be completed and recorded under LPS: a medical assessment, a capacity assessment and a necessary and proportionate assessment. A determination is where a decision is made on each of the 3 assessments that the person meets the relevant authorisation condition.
Attorney	Someone appointed under either a lasting power of attorney (LPA) or an enduring power of attorney (EPA), who has the legal right to make decisions within the scope of their authority on behalf of the person (the donor) who made the power of attorney.
Authorisation	An authorisation gives legal authority to deprive a person of their liberty. An authorisation is given by the Responsible Body if the arrangements put in place for a person’s care and treatment amount to a deprivation of liberty and the authorisation conditions are met.
Authorisation conditions	The conditions which must be met before a Responsible Body can authorise the proposed arrangements. In order to determine whether the conditions are met, 3 assessments and determinations must be completed.
Authorisation record	A record relating to the person, specifying all arrangements authorised by the Responsible Body at that time and other matters such as the programme for reviewing the authorisation.
Best interests decisions	Any decisions made, or anything done for or on behalf of a person who lacks capacity to make specific decisions must be in the person’s best interests. The steps to follow when working out someone’s best interests are set out in section 4 of the Act, and in the non-exhaustive checklist in the Code of Practice.
Capacity	The ability to make a decision about a particular matter at the time the decision needs to be made. The legal definition of a person who lacks capacity is set out in section 2 of the Act.
Capacity assessment and determination	An assessment and determination that the person lacks capacity to consent to the proposed arrangements.
Care Act 2014	The Care Act 2014 is the main legal framework for adult social care in England. Under the Care Act 2014, local authorities must carry out an assessment of anyone who appears to require care and support, regardless of their likely eligibility for state-funded care. Local authorities also have duties and powers to provide care and support.
Carer	Someone employed to provide personal care for people who need help because of sickness, age or disability. They could be employed for example by the person themselves, by someone acting on the person’s behalf or by a care agency.
Children Act 1989	A law relating to children and those with parental responsibility for children.
Children and Families Act 2014	The Act brings together different areas of law that affect children, especially the safeguarding of vulnerable children.
Consultation	The Responsible Body required to consult the person and other specific individuals. The main purpose of the consultation is to ascertain the person’s wishes and feelings regarding the proposed arrangements.
Consultee	A person who is consulted, for example about the involvement in a research project of a person who lacks capacity to consent to their participation in the research.
Court of Protection	The Court of Protection makes decisions about mental capacity and best interests. This may include making decisions for and on behalf of adults who may lack capacity to make specific decisions for themselves. The Court of Protection is established under section 45 of the Act.
Court of Protection visitor	Someone who is appointed to report to the Court of Protection on how attorneys or deputies are carrying out their duties. Court of Protection Visitors are established under section 61 of the Act. They can also be directed by the Public Guardian to visit donors, attorney and deputies under section 58(1)(d).
Data Protection Act 2018	The Data Protection Act 2018 controls how a person’s personal information is used by organisations, businesses or the government. The Data Protection Act 2018 is the UK’s implementation of the General Data Protection Regulation (GDPR). Those responsible for using personal data have to follow strict rules called ‘data protection principles’ and must make sure the information is used fairly, lawfully and transparently.
Decision-maker	Under the Act, many different people may be required to make a decision or act on behalf of someone who lacks capacity to make the decision for themselves. The person making the decision is referred to throughout the Code, as the ‘decision-maker’, and it is the decision-maker’s responsibility to work out what is in the best interests of the person who lacks capacity.
Declaration	A kind of order made by the Court of Protection. For example, a declaration could say whether a person has or lacks capacity to make a particular decision, or that a particular act would or would not be lawful. The court’s power to make declarations is set out in section 15 of the Act.
Deputy	Someone appointed by the Court of Protection with ongoing legal authority as prescribed by the court to make decisions on behalf of a person who lacks capacity to make particular decisions as set out in section 16(2) of the Act.
Disclosure and Barring Service (formerly known as the Criminal Records Bureau)	The Disclosure and Barring Service (DBS) provides access to criminal record information. It enables organisations in the public, private and voluntary sectors to make safer recruitment decisions by identifying candidates who may be unsuitable for certain work, especially involving children or vulnerable adults. DBS also maintains the adults’ and children’s barred lists and makes considered decisions as to whether an individual should be included on one or both of these lists and barred from engaging in regulated activity.
Donee	Someone appointed by a donor to be an attorney.
Donor	A person who makes a lasting power of attorney or enduring power of attorney.
Enduring power of attorney (EPA)	A power of attorney created under the Enduring Powers of Attorney Act 1985 appointing an attorney to deal with the donor’s property and financial affairs. EPAs continue to operate under Schedule 4 of the Act.
Equality Act 2010	The Equality Act 2010 legally protects people from discrimination in the workplace and in wider society on the basis of certain ’protected characteristics’ (including age and disability).
Equality Act 2010 (Disability Rights)	For the purposes of the Equality Act, a disability means a physical or a mental impairment which has a substantial and long-term impact on your ability to carry out normal day-to-day activities.
Family Division of the High Court	The division of the High Court that has the jurisdiction to deal with all matrimonial and civil partnership matters, family disputes, matters relating to children and some disputes about medical treatment.
Fiduciary duty	Anyone acting under the law of agency has this duty. In essence, it means that any decision taken, or act done as an agent (such as an attorney or deputy) must not benefit the agent but must benefit the person for whom they are acting.
Guardianship	Arrangements, made under the Mental Health Act 1983, for a guardian to be appointed for a person with a mental disorder to help ensure that the person receives the care they need in the community.
Health and social care (Safety and Quality) Act 2015	The aim of the act is to improve the quality of care and outcomes for patients and for example, it includes provisions on sharing information and reducing harm in care.
Human Rights Act 1998	The act sets out the fundamental rights and freedoms that everyone in the UK is entitled to. It incorporates most of the rights set out in the European Convention on Human Rights (ECHR) into domestic UK law.
Human Tissue Act 2004	A law to regulate issues relating to whole body donation and the taking, storage and use of human organs and tissue. It is unlawful to retain tissue with the intention of its DNA being analysed, without the consent of the person from whom the tissue came.
Ill treatment	Section 44 of the Mental Capacity Act 2005 relates to the ill treatment or wilful neglect of a person who lacks capacity by someone who is caring for them or acting as a deputy or attorney for them. That individual can be guilty of ill treatment if they have deliberately ill treated a person who lacks capacity or been reckless as to whether they were ill treating the person or not. It does not matter whether the behaviour was likely to cause, or actually caused, harm or damage to the victim’s health.
Independent Mental Capacity Advocate (IMCA)	An IMCA provides representation and support for a person who lacks capacity to make specific decisions, where the person has no one else (other than paid staff) who it would be appropriate to consult with in order to determine what is in the person’s best interests. It is not the same as an ordinary advocacy service.
Independent Mental Capacity Advocate (IMCA) under the LPS	An IMCA under the LPS provides representation and support for people who have been referred to the LPS or are subject to the LPS, and who do not have an Appropriate Person who is suitable to take on this role.
Information Commissioners Office (ICO)	The ICO upholds information rights in the public interest, promoting openness by public bodies and data privacy for individuals. The ICO has powers to ensure that the laws about information, such as the Data Protection Act 2018, are followed.
Lasting power of attorney (LPA)	A lasting power of attorney created under the Act (see section 9(1)) enables an attorney (or attorneys) to make decisions about the donor’s personal welfare (including healthcare) and/or property and affairs.
Liberty Protection Safeguards (LPS)	The system in England and Wales through which arrangements to provide care and treatment to a person, which amount to a deprivation of liberty, are considered for people who lack the relevant mental capacity to consent to those arrangements.
Life-sustaining treatment	Any medical treatment that the decision-maker reasonably believes to be necessary to carry on or maintain a person’s life. See section 4(10) of the Act.
Litigation friend	A person appointed by the court to conduct legal proceedings on behalf of, and in the name of, someone who lacks capacity to conduct the litigation or to instruct a lawyer themselves.
Local Government and Social Care Ombudsman	In England, the Local Government and Social Care Ombudsman is an independent organisation that investigates complaints about councils and local authorities on most council matters including housing, planning, education and social services. For Wales, see the Public Services Ombudsman.
Makaton	A language programme using signs and symbols, for the teaching of communication, language and literacy skills for people with communication and learning difficulties.
Mediation	A process for resolving disagreements in which an impartial third party (the mediator) helps people in dispute to find a mutually acceptable resolution.
Medical assessment and determination	An assessment and determination that the person has a mental disorder as defined under the MHA.
Mental capacity	The ability to make a particular decision at the time it needs to be made.
Mental Capacity Act (MCA) 2005 (‘the Act’)	The MCA provides a statutory framework in England and Wales, for supporting people aged 16 and over to make their own decisions, alongside setting out the legal framework for people who lack capacity to make decisions for themselves, or who have capacity and want to make preparations for a time when they may lack capacity in the future. It sets out who can take decisions, in which situations, and how they should go about this. The Act came into force in 2007.
Mental disorder	Mental disorder is defined in the MHA as any disorder or disability of the mind.
Mental Health (Wales) Measure 2010	It places legal duties on local health boards and local authorities about the assessment and treatment of people with mental health problems. The Measure also includes provisions on access to independent mental health advocacy for people with mental health problems.
Mental Health Act 1983 (MHA)	The Mental Health Act 1983 is the main piece of legislation that covers the assessment, treatment and rights of people with a mental health disorder. People can be detained under the MHA for the purposes of assessment and/or treatment of mental disorder.
Monitoring bodies	Bodies responsible for monitoring and reporting on the operation of the LPS, for example the CQC (in England).
Necessary and proportionate assessment and determination	An assessment and determination that the arrangements amounting to a deprivation of liberty are both necessary to prevent harm to the person and proportionate in relation to the likelihood and seriousness of this harm.
Notification duty	The duty of Responsible Bodies to regularly notify the monitoring bodies of certain matters such as when authorisations are given and when they have been renewed or have ceased.
Office of the Public Guardian (OPG)	The Public Guardian is an officer established under section 57 of the Act. The Public Guardian is supported by the Office of the Public Guardian, which supervises deputies, keeps a register of deputies, LPAs and EPAs, and investigates complaints about attorneys or deputies.
Unpaid carer	Someone who provides or intends to provide care by looking after a friend or neighbour who needs support because of physical or mental impairment or illness. In most cases a carer will not provide support by virtue of a contract or as voluntary work. In this document, the role of the carer is different from the role of a professional care worker.