Alcohol-related brain damage legal issues - using the Mental Capacity Act

The Mental Capacity Act 2005 provides the legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make particular decisions for themselves.

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There are five key principles within the Mental Capacity Act:

  1. Presumption of capacity - A person must be presumed to have the capacity to make decisions unless it can be shown that they lack it
  2. Assisted Decision-Making - A person should not be treated as unable to make a decision unless all practicable steps for them to do so have been taken without success (e.g. simplifying information, presenting non-verbal information, giving time to understand)
  3. Unwise Decisions - People have the right to make unwise or eccentric decisions, and a person should not be treated as unable to make a decision just because that decision is not a sensible one
  4. Best Interest - A decision made under the Mental Capacity Act must be made in the person’s best interest.
  5. Least Restrictive Option - Anyone making a decision on behalf of someone who lacks capacity must consider if there is a less restrictive option – is there something else that could be done that would not restrict the person’s rights and freedom as much?

Assessing Mental Capacity

Assessing Mental Capacity is a two-stage test, the first stage being to ask the question, “Is there an impairment of or disturbance in the person’s mind or brain?” If the answer is yes, then it needs to be established whether that impairment or disturbance is such that the person lacks capacity to make that particular decision – i.e. if they are unable to:

  • Understand information relevant to the decision.
  • Retain information related to the decision.
  • Use or weigh up that information as part of the process of making the decision.
  • Communicate the decision by any means.

People with ARBD may appear to have capacity based on retention – they may remember things they are told or asked for a short period of time, giving the impression that they understand, but may have completely forgotten ever having the conversation an hour later. Frontal-lobe impairment may also make people suggestible, meaning that their answers may be a response to the way the questions are asked – in a sense, the brain may be trying to give the ‘right’ or expected answers to questions.

Deprivation of Liberties Safeguards (DOLS)

Deprivation of Liberties Safeguards (DOLS) were introduced because decisions about care for an individual who lacks capacity can lead to depriving them of their liberties in their best interests. DOLS can only apply to a person deemed to lack capacity in a hospital setting or a care home, and does not apply to people detained under the Mental Health Act 1983. A DOLS authorisation can be used to authorise the care and treatment of someone lacking capacity due to ARBD.

There is a series of videos about these five principles on the Social Care Institute for Excellence website:

This fact sheet was written by our predecessor organisation Alcohol Concern with the support of Garfield Weston Foundation.

Other legal issues fact sheets in this series:

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