When we talk about adult social care we refer to a wide range of professional activities and services that aim to provide help, care, or protection from harm for people over the age of 18, namely: older people, adults with a physical or intellectual disability and adults experiencing physical or mental illness. We’re here to make sure that people are as involved as possible in the assessment, planning and review of their care and support, or when they are involved in adult safeguarding processes, and to represent them when they cannot represent themselves.

What We Do

Everyday we work with people with a range of needs for care and support in order to maintain their independence, well-being and safety including by:

Adult Social Care

What is the role of a Local Authority?

Generally, social care law place duties on Local Authorities to:

  • Reduce the need for adult social care for people residing in their area, such as through services, resources or facilities that help people to avoid developing needs for care and support; that slow down or reduce further deterioration or prevent other needs from
    developing; or that aim to maximise the person’s independence
  • Plan, deliver (or help a person to obtain) and then review care and support for adults with a social care need residing in their area
  • Assess children who are approaching adulthood and who are likely to have a social care need once they turn 18.
  • Protect vulnerable adults at risk of abuse
  • Provide support to people who are providing unpaid care to someone with a social care need.

Sometimes, someone with a social care need lacks mental capacity to decide what care or support they want, meaning that someone else needs to make decisions on their behalf. Local Authorities may need to make a decision for someone in their best interests in relation to care and support that will be provided to them.

What is a 'social care need'?

A social care need can be broadly defined as:

“one that is focused on providing assistance with activities of daily living, maintaining independence, social interaction, enabling the individual to play a fuller part in society, protecting them in vulnerable situations, helping them to manage complex relationships and (in some circumstances) accessing a care home or other supported accommodation” (Department of Health)

Having a social care need is not about a person having a particular illness or disability or being a particular age, but about how a type of care and support can help a person to meet a particular outcome – such as maintaining their nutrition or personal hygiene or home environment – in order to achieve the outcomes that matter to them, which in turn will promote their well-being. The concept of ‘well-being’ is now a legal one, introduced in England through the Care Act 2014 and in Wales via the Social Services and Well-being (Wales) Act 2014. Each Act defines well-being slightly differently but both Acts place a general duty on Local Authorities when exercising a care and support function, to ‘promote’ a relevant person’s well-being. The Care Act defines well-being in section 1 as based on nine separate dimensions or aspects of the person, all of which relate to their well-being, such as their personal dignity, their physical and mental health and emotional well-being and their protection from abuse and neglect.

Talking about what a social care need often involves also talking about what a ‘healthcare need’ is, and what the difference is between the two. This can result in confusion and complexity in deciding what services a person needs and how this will be funded. Sometimes a person is assessed as needing a package of care or a placement that meets both healthcare and social care needs.

For more information see the Government’s factsheet: ‘Assessing needs and determining eligibility’ (for England) or the Information and Learning Hub for social care legislation in Wales.

What does social care provision look like?

Social care provision can be about helping a person to meet their most basic needs, such as getting washed and dressed and making daily meals to ensuring a person can live as independently as possible, by helping them to engage in their local community or in education, training or employment.

Social care may be provided in a person’s home, in the community or in a care home or residential home. A person may be provided with care and support or items that help them day-to-day (such as adaptations around their home) or they can be given money directly by the Local Authority in order to pay for relevant goods and services they choose for themselves (a ‘Direct Payment’). The Care Act 2014 offers examples of what may be provided to meet a person or carer’s needs for care or support:

  • accommodation in a care home or in premises of some other type;
  • care and support at home or in the community;
  • counselling and other types of social work;
  • goods and facilities;
  • information, advice and advocacy.

The provision of social care begins with an assessment of needs that is carried out by a representative of the relevant Local Authority, although a Local Authority can also support a process of self-assessment. Persons deemed eligible for care or support through the assessment process will then have a care and support or support plan drafted with them and this plan will be set out the provision of care and support they will receive. The plan is then reviewed with the Local Authority at set times.

For more information see the Government’s factsheet: ‘Personalising care and support planning’ (England) or the Information and Learning Hub for social care legislation in Wales.

Care Act 2014

Briefly, what is the Care Act 2014?

The Care Act 2014 is an Act of Parliament (intended to be a law for England), described at the time that it came into force in April 2015 as the most significant change to social care law in 60 years, replacing several other Acts of parliament that had become out-of-date and too complicated for people with social care needs as well as for many social care professionals. The Care Act 2014 consolidated a number of functions relating to the assessment and provision of social care and updated these functions to align them with key social (as well as health) policy priorities such as personalisation, integration (of heath and social care) and prevention of need.

What changes were introduced by the Care Act 2014?Under the Care Act 2014 several important provisions were introduced:

  • The duty on Local Authorities to promote an individual’s well-being in assessing, planning, providing and reviewing care and support, with a legal definition of what “well-being” means.
  • Adult safeguarding functions enshrined in law for the first time (safeguarding enquiries and Safeguarding Adults Reviews)
  • Introducing additional positive duties on local authorities, including duties to prevent and reduce an individual’s need for care and support via services, facilities or resources (the ‘prevention principle’); to promote the integration of care and support with health care (the ‘integration principle’); to provide information and advice services relating to care and support for adults and carers, and;  to promote diversity and quality in services by an “efficient and effective operation” of a market in services for meeting care and support needs
  • A new national level of care and support needs to make care and support more consistent across Local Authority areas in England
  • New duties on Local Authorities to meet carers’ needs for support, including young carers
  • Deferred payment agreements for care costs
  • The introduction of a new statutory Independent Advocate role for the purpose of supporting and representing people experiencing “substantial difficulty” being involved in social care processes such as needs assessments and safeguarding enquiries.

How does the Care Act 2014 define 'well-being'?

Section 1(2) of the Care Act 2014 states that: “Well-being”, in relation to an individual, means that individual’s well-being so far as relating to any of the following—

(a)personal dignity (including treatment of the individual with respect);

(b)physical and mental health and emotional well-being;

(c)protection from abuse and neglect;

(d)control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided);

(e)participation in work, education, training or recreation;

(f)social and economic well-being;

(g)domestic, family and personal relationships;

(h)suitability of living accommodation;

(i)the individual’s contribution to society.

Further Reading: The Care Act 2014Care and support statutory guidance (Care Act guidance) 

Mental Capacity Act 2005

Briefly, what is the Mental Capacity Act 2005?

The Mental Capacity Act 2005 is an Act of parliament for the purpose of providing rights, duties and safeguards relating to people aged 16 or over who lack mental capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken. This includes decisions or actions that are serious or life-changing or relate to day-to-day matters. It is a law for both England and Wales.

Anyone working with or caring for an someone 16 or over who may lack capacity to make specific decisions must comply with the Act when making decisions or acting for that person, when the person lacks the capacity to make a particular decision for themselves.

Section 1 of the Act sets out the five ‘statutory principles’ – the values that underpin the legal requirements in the Act. These aim to protect people who lack capacity and help them take part, as much as possible, in decisions that affect them.

What are the 5 Statutory Principles of the Act?

From section 1 of the Mental Capacity Act:

  1. A person must be assumed to have capacity unless it is established that they lack capacity.
  2. A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.
  3. A person is not to be treated as unable to make a decision merely because they make an unwise decision.
  4. An act done, or decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests.
  5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

These principles mean that a person aged 16 or over should be presumed able to make a decision for themselves – no matter what their age, appearance, behavior or any condition they have may be – unless an appropriate assessment of their mental capacity to make that decision finds otherwise. Assessing a person’s mental capacity involves a two-stage test, asking:

  1. Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works (for example, an intellectual disability, dementia, a head injury or drug or alcohol use)? It does not matter whether the impairment or disturbance is temporary or permanent. This part of the ‘test’ is often referred to as the ‘diagnostic test’.
  2. If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made? This part of the ‘test’ is often referred to as the ‘functional test’.

At this point, principles 2 and 3 of the Act are crucial to the process of assessing capacity. The person assessing mental capacity must ensure that everything practical has been done to help the person being assessed to make the relevant decision before they can then be assessed as lacking mental capacity and must also ensure that the person is not considered as lacking capacity because other people think their decision is unwise. For this reason it is important for the assessor to be aware of the person’s values, beliefs, preferences and attitudes as well as their own and possibly other people’s.

What does it mean to be 'unable to make a decision?

The Mental Capacity Act defines a person as unable to make a decision if they cannot:

  • Understand information about the decision to be made (the Act calls this ‘relevant information’)
  • Retain that information in their mind (meaning being able to hold the information in their mind long enough to use it to make an effective decision)
  • Use or weigh that information as part of the decision-making process, or
  • Communicate their decision (by talking, using sign language or any other means).

The Code of Practice for the Mental Capacity Act states that the first three points should be applied together. If a person cannot do any of these three things, they will be treated as unable to make the decision. The fourth only applies in situations where people cannot communicate their decision in any way. This definition of being unable to make a decision is the same for people who may be permanently unable to make a decision as well as those with fluctuating or temporary capacity. The assessment itself can be challenged by the person being assessed, other professionals, family, friends or an advocate. Where disagreement cannot be resolved, the Court of Protection can rule on whether a person has capacity to make the decision covered by the assessment.

What happens when a person lacks mental capacity and a decision needs to be made or action needs to be taken?

As principle 4 of the Act states: an act done, or decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests. This is the same whether the person making the decision or acting is a family carer, a paid care worker, an attorney, a court-appointed deputy, or a health or social care professional, and whether the decision is a minor issue – like what to wear – or a major issue, like whether to provide a particular type of social care or support.

As long as these acts or decisions are in the best interests of the person who lacks capacity to make the decision for themselves, or to consent to acts concerned with their care or treatment, then the decision-maker or carer will be protected from liability.

There are two circumstances when the best interests principle does not apply. The first is where someone has previously made an advance decision to refuse medical treatment while they had the capacity to do so. Their advance decision should be respected when they lack
capacity, even if others think that the decision to refuse treatment is not in their best interests. The second concerns the involvement in research, in certain circumstances, of someone lacking capacity to consent.

The term ‘best interests’ is not actually defined in the Act. This is because so many different types of decisions and actions are covered by the Act, and so many different people and circumstances are affected by it.

However, section 4 of the Act explains how to work out the best interests of the person, setting out a checklist of common factors that must always be considered by anyone who needs to decide what is in their best interests in that particular situation. This is commonly referred to as the ‘best interests checklist’. The Code of Practice states that the checklist should only be the starting point and that in many cases, extra factors will need to be considered.

What is the 'Best Interests Checklist'?

A person acting or making a decision on behalf of a person lacking mental capacity must:

  1. Not make assumptions about what is in their best interests merely on the basis of the person’s age, appearance, condition or aspect of their behaviour.
  2. Consider whether it is likely that the person will at some point have capacity in relation to the action or decision and, if so, when that is likely to be for the purpose of determining whether the action or decision can be postponed until that time.
  3. Allow and encourage the person to participate, or improve their ability to participate as fully as possible in the act or decision affecting them, as much as it is reasonable and practical to do so.
  4. Not be motivated by a desire to bring about the person’s death where a decision or action relates to life-sustaining treatment.
  5. Consider the person’s past and present wishes and feelings (in particular, any relevant written statement they made when they had capacity), the beliefs and values that would be likely to influence their decision and any other factors that they would be likely to consider if they were able to do so, so far as any of these can reasonably be obtained. 
  6.  Take into account the views of anyone named by the person as someone to be consulted on the matter (or matters of that kind), anyone engaged in caring for the person or interested in their welfare, any donee of a lasting power of attorney or any deputy appointed for the person by the Court of Protection in regard to what would be in the person’s best interests and, in particular, as to the the person’s past and present wishes, etc as above. Where none of the above can be found, to instruct a Independent Mental Capacity Advocate (IMCA) for decisions where the Act says an IMCA must be instructed.

Further Reading: Mental Capacity Act 2005; Mental Capacity Act 2005 Code of Practice

The Deprivation of Liberty Safeguards (DoLS)

Briefly, what are the Deprivation of Liberty Safeguards (DoLS)?

The Deprivation of Liberty Safeguards (DoLS), set out in Schedule A1 to the Mental Capacity Act 2005 (an amendment introduced by the Mental Health Act 2007), provide legal protection for vulnerable adults who are, or may become, deprived of their liberty within the meaning of Article 5 of the European Convention on Human Rights (the right to liberty and security) in a hospital or care home, whether placed under public or private arrangements. They do not apply to people detained under the Mental Health Act 1983. The DoLS are designed to prevent arbitrary decisions to deprive a person of liberty and give a right to challenge deprivation of liberty authorisations.

Why do we need the DoLS?

Article 5(1) of the European Convention on Human Rights (ECHR), on the right to liberty and security of persons, states that:

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in [certain] cases and in accordance with a procedure prescribed by law.

This means that no detention of a person that amounts to a deprivation of liberty may be permitted without authorisation under a ‘statutory scheme’ created by an Act of Parliament or an amendment to an existing Act. To do so would otherwise result in false imprisonment.

The DoLS came into being by the very fact that a vulnerable adult (a man with a learning disability and autism) who lacked mental capacity to decide whether he should be admitted to hospital for specific treatment, was detained in a hospital without legal procedure for a period of three months in 1997. His case was subsequently taken to the European Court of Human Rights (ECtHR) – having passed unsuccessfully through the UK courts. In 2004 the ECtHR found that the man’s admission to hospital constituted a deprivation of his liberty and, further, that the deprivation of liberty had not been in accordance with ‘a procedure prescribed by law’ and therefore was in breach of Article 5(1) of the ECHR. In addition, the ECtHR found that there had been a contravention of Article 5(4) of the ECHR because the man had been given no means of applying quickly to a court to see if the deprivation of liberty was lawful. Article 5(4) of the ECHR states:

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

The man in the case became known as ‘HL’, through the title of the case: HL v the United Kingdom. The case also became commonly referred to as the ‘Bournewood’ judgment after the name of the hospital in which HL had been detained. Following the judgement of the ECtHR, the next step for the UK government was to avoid future breaches of vulnerable peoples Article 5 rights by creating a statutory scheme that would allow for vulnerable adults to be deprived of their liberty within the meaning of Article 5 of the ECHR in a hospital or care home, whether placed under public or private arrangements. The scheme also required vulnerable adults to be able to take proceedings in regard to the deprivation of their liberty to be determined by a relevant court.

Generally, how do the DoLS work?

The DoLS make it clear that a person may only be deprived of their liberty:

  • in their own best interests to protect them from harm
  • if it is a proportionate response to the likelihood and seriousness of the harm, and
  • if there is no less restrictive alternative.

The DoLS provide for deprivation of liberty in hospitals or care homes to be made lawful through ‘standard’ or ‘urgent’ authorisation processes authorised by Local Authorities. Under the DoLS, the hospital or care home, is referred to as the ‘managing authority’. The Local Authority is referred to as the ‘supervisory body’. It is the managing authority’s responsibility to identify someone who may come within the scope of the DoLS and to apply to the relevant supervisory body for authorisation. The managing authority should also tell the relevant person’s family, friends and carers, and any IMCA already involved in the relevant person’s case, that it has applied for an authorisation of deprivation of liberty, unless it is impractical or impossible to do so, or undesirable in terms of the interests of the relevant person’s health or safety. It is the supervisory body’s responsibility to consider requests for authorisations, commission the required assessments and, where all the assessments agree, authorise the deprivation of liberty. The supervisory body must obtain the relevant assessments to ascertain whether the qualifying requirements of the DoLS are met.

The DoLS cover:

  • How an application for authorisation should be applied for
  • How an application for authorisation should be assessed
  • The requirements that must be fulfilled for an authorisation to be given
  • How an authorisation should be reviewed
  • What support and representation must be provided for people who are subject to an authorisation, and
  • How people can challenge authorisations.

What assessments are required for a deprivation of liberty to be authorised?

The assessments required are:

  • An age assessment (to confirm whether the relevant person is aged 18 or over)
  • A ‘no refusals’ assessment (to establish whether an authorisation to deprive the relevant person of their liberty would conflict with another existing authority for decision-making for that person, i.e. a valid advance decision made by the person or decision of a donee or a deputy)
  • A mental capacity assessment (to establish whether the relevant person lacks capacity to decide whether or not they should be accommodated in the relevant hospital or care home to
    be given care or treatment)
  • A mental health assessment (to establish whether the relevant person has a mental disorder within the meaning of the Mental Health Act 1983, i,e. any disorder or disability of mind apart from dependence on alcohol or drugs.
  • An ‘eligibility’ assessment (to confirm the person is not detained as a hospital in-patient or under the Mental Health Act 1983 or otherwise under an obligation placed on them under the Mental Health Act 1983, such as a requirement to live elsewhere while on leave of absence from detention or subject to guardianship, supervised community treatment or conditional discharge).
  • A ‘best interests’ assessment (to establish: 1. whether deprivation of liberty is in fact occurring or is going to occur and, if so, 2. whether it is in the best interests of the relevant person to be deprived of their liberty; it is necessary for them to be deprived of liberty in order to prevent harm to themselves, and deprivation of their liberty is a proportionate response to the likelihood of the relevant person suffering harm and the seriousness of that harm).

Who gets to say what is in the person's best interests?

As part of the best interests assessment, the relevant assessor must give anyone who is engaged in caring for the relevant person or who is interested in their welfare, or who has been named by them as a person to consult, the opportunity to input their views on whether deprivation of liberty is in the best interests of the relevant person. The managing authority must notify the supervisory body, when it submits the application for the deprivation
of liberty authorisation, if it is satisfied that there is no one who should be consulted in determining the relevant person’s best interests (other than those providing care and
treatment for the relevant person in a professional or paid capacity). The supervisory body must then instruct an Independent Mental Capacity Advocate (IMCA) to represent and support the relevant person before any assessments take place.

What is the role of 39A IMCAs during the deprivation of liberty assessment process?

Generally, the role of IMCAs in the assessment process, as set out in section 39A of the Mental Capacity Act is to represent the relevant person and to act as an independent person being consulted for the purpose of determining what is in the relevant person’s best interests. In this context, IMCAs have the right to:

  • Give information or make submissions to assessors as the IMCA considers appropriate, which assessors must take into account in carrying out their assessments
    Receive copies of any assessments from the supervisory body
  • Receive a copy of any standard authorisation given by the supervisory body
  • Be notified by the supervisory body if they are unable to give a standard authorisation because one or more of the deprivation of liberty assessments did not meet the qualifying requirements
  • Receive a copy of any urgent authorisation from the managing authority
  • Receive from the managing authority a copy of any notice declining to extend the duration of an urgent authorisation
  • Receive from the supervisory body a copy of any notice that an urgent authorisation has ceased to be in force, and
  • Apply to the Court of Protection for permission to take the relevant person’s case to the Court in connection with a matter relating to the giving or refusal of a standard or urgent authorisation (as any other third party can).

Further Reading: Schedule A1 of the Mental Capacity Act 2005; Deprivation of Liberty Safeguards Code of Practice

For information about relevant persons representatives and other imca roles in relation to the Dols please see the relevant service pages

Mental Health Act 1983

What is 'section 117 Aftercare'?

Patients experiencing mental health problems who have been detained in hospital under the Mental Health Act 1983 are entitled to aftercare services under section 117 if they have been detained for treatment and are then discharged or subsequently become subject to a Community Treatment Order (CTO). Offenders who require mental health treatment who are under a hospital order or direction, transferred from prison under the Act or are conditionally discharged restricted patient may also receive aftercare. Aftercare is available to individuals of all ages, including children and young people.

Section 117 of the Act requires clinical commissioning groups (CCGs) and local authorities, in co-operation with voluntary agencies, to provide or arrange for the provision of after-care to patients. After-care services mean services which have the purposes of meeting a need arising from or related to the patient’s mental health and reducing the risk of deterioration of their mental condition and so reducing the risk of the patient requiring admission to hospital again for treatment for mental disorder. Their ultimate aim is to maintain patients in the community, with as few restrictions as are necessary, wherever possible.

Aftercare can encompass healthcare, social care and employment services, supported accommodation and services to meet the person’s wider social, cultural and spiritual needs, if these services meet a need that arises directly from or is related to the particular patient’s mental condition, and help to reduce the risk of a deterioration in the patient’s mental condition.

Independent Mental Health Advocates (IMHA) can support qualifying patients in regard to after-care planning to ensure the patient’s views are central to effective after-care provision.

Further Reading: Section 117 of the Mental Health Act 1983; Chapter 33 Mental Health Act Code of Practice

TO LEARN MORE ABOUT Independent ADVOCACY under the Care Act 2014, independent Mental Health Advocacy (IMHA) and independent Mental Capacity Advocacy (IMCA) CLICK ON A SERVICE UNDER ‘SERVICES’ IN THE MAIN MENU.