The purpose of the Mental Capacity Act 2005 (MCA) is to provide a legal framework for protecting and empowering individuals aged 16 and over who may lack the capacity to make certain decisions about their lives, especially regarding care, treatment, and financial affairs. It aims to safeguard their rights by assuming they have capacity, offering support to help them make their own decisions, and establishing a process to act in their best interests when they cannot.
Where the person's ability to make decisions regarding their care and support is in question, a formal assessment of their capacity to make decisions regarding their care and support should be completed and recorded in accordance with the principles set out in the Mental Capacity Act and supporting Code of Practice.
Where consideration is being given to the need for one-to-one support, the following should always be considered in line with the principles of the Mental Capacity Act:
- is it in the persons best interests? (Mental Capacity Act Section 1(5))
- is it the least restrictive way to support the person (that is, least restrictive of the person's rights and freedoms) (Mental Capacity Act Section 1(6))
The provision of one-to-one support (over and above general observations) is likely to be a restriction on a person's liberty. The right to liberty is a fundamental human right protecting individuals from unlawful or arbitrary deprivation of their freedom. It is enshrined in international and national law, notably Article 5 of the European Convention on Human Rights (ECHR), and implemented in the UK through the Human Rights Act 1998. Accordingly, if the person is assessed as lacking capacity to make decisions regarding their care and support, and the proposed care and support is restrictive in nature, consideration should be given to whether the person is deprived of their liberty as defined by the 'acid test' in the Supreme Court judgement in the Cheshire West case.
Where a person is deprived of their liberty, appropriate review and authorisation of that deprivation should be sought. The process to be used for this review will depend on where the deprivation of liberty occurs; if the deprivation of liberty occurs in a care home or hospital, the responsibility for review and authorisation rests with the relevant local authority under the Deprivation of Liberty Safeguards process as set out in Schedule A1 of the Mental Capacity Act. If the deprivation of liberty occurs in a person's own home, this will be reviewed by the Court of Protection, following an application made by the relevant commissioner of the care.
