Consent, Capacity and Decisions

The law governing how health and social care staff work with people who may be unable to make some decisions about their care and treatment is called the Mental Capacity Act.

People may be unable to make decisions because of a temporary or permanent impairment, for example dementia, learning disabilities, brain injury or stroke.

Consent, Capacity and Decisions about Healthcare

Many people assume that if a person cannot make their own decisions, their family or next of kin would be asked to make decision for them. This is not necessarily true.

Next of Kin leaflet

The law includes provision for a person to appoint someone else to make decisions for them (power of attorney) in advance for a time when that may be necessary. Information about how to appoint a power of attorney under the Mental Capacity Act can be found on the Direct Gov website.

The law also includes provision for a person to make decisions in advance (advance decisions), for a time when they are no longer able to make their own decisions about their health or welfare. More information about this can be found here.

Deprivation of Liberty

The law provides additional protection for people who cannot make decisions for themselves and need to be deprived of their liberty in order to be kept safe. For people in care homes, nursing homes or hospitals, this involves the deprivation of liberty safeguards process. This process can be used if there is a disagreement about whether it is in the person’s best interest to stay in a care home or hospital.

Deprivation of Liberty

Deprivation of liberty is a legal term. A person is “deprived of their liberty” if they are not free to leave the place where they are receiving care and treatment and staff need to know where they are at all times (for their own safety). It may apply even if everyone agrees that the person needs the care and treatment. This situation may arise in any setting. When the CCG arranges this type of care and support in a setting other than a care home or hospital (for example in supported living or in a person’s own home), they will need to apply to the court of protection to approve the arrangements. If this affects you or a member of your family, you can find more information here.

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