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Care Related Legal Matters

When providing care to persons who experience cognitive impairments we are required to adhere to two legislative safeguards.

Deprivation Of Liberty Safeguards

This is an amendment to the Mental Capacity Act 2005 via the Mental Health Act 2007, which adds Deprivation of Liberty safeguards to the Mental Capacity Act 2005.

The key point is that people who suffer from a disorder or disability of the mind, such as dementia, and who lack the mental capacity to consent to the care or treatment they need, should be cared for in a way that does not limit their rights or freedom of action. However, the Government accepts that in some cases members of this vulnerable group need to be deprived of their liberty for treatment or care because this is necessary in their best interest to protect them from harm.

Whenever a hospital or care home identifies that a person who lacks capacity is being, or risks being, deprived of their liberty, they must apply to the social service department of there host local authority, for authorisation of Deprivation of Liberty. Authorisation should be obtained in advance, unless the need is urgent, and an urgent authorisation may be issued by the home or hospital for a maximum of 7 days. When a supervisory body receives a request for a Deprivation of Liberty they have to carry out six assessments. If the person’s needs meet these six assessments, then a Deprivation of Liberty authorisation is given and a person is appointed to represent the person’s best interests. These authorisations cannot last longer than 12 months.

Mental Capacity Act 2005

We provide care in line with The Mental Capacity Act and this will alter some aspects of the way the home is run and maintains records.The Mental Capacity Act 2005 came fully into force on 1st October 2007. This legislation is to protect people who cannot make their own decisions and “lack mental capacity”.The key points about the Act are that in caring for someone we should:Start from the point that everyone can make their own decisions, particularly if they are appropriately supported.If a resident, with mental capacity, makes a decision we disagree with, the decision is valid and we must respect it.If we have a resident who we think “lacks mental capacity” there is a check list we can use to establish whether the person has capacity.The Act has also changed the Powers of Attorney and the Court of Protection can appoint deputies to look after people’s interests if appropriate.

What Do These Acts Mean In Practice

We have always sought to work in the best interests of our residents and in doing so we have worked in close liaison with families and carers. We hope that this positive approach can continue with the requirements the Act places on us.
If a resident lacks capacity to make decisions we will review that assessment periodically. We may find that the resident has capacity to make daily living decisions where previously we were making those decisions for them. If this is the case we will take into account their views which may be contrary to the wishes of the family. If this is the case we will, of course, discuss this with you but we must accept and respect a decision made by a resident who has the mental capacity to make it. We will point this out in discussions and hope you will understand that this is legislation which we have to follow.
If any person has an Enduring Power of Attorney this will, in most cases, remain valid.