A-Z Jargon Buster

A-Z Jargon Buster

ADVANCE DECISIONS TO REFUSE TREATMENT – an advance refusal of a specified treatment made by a person at a time when they have capacity to make that decision, to be brought into play when that person is no longer able to make that decision for themselves. If it meets certain formal requirements, an ‘ADRT’ is legally binding.
ADVANCE STATEMENTS – a statement about the sort of care that someone would wish to receive, or any aspect of their future health or social care. An advance statement is not legally binding, but must be taken into account by anyone who is making decisions about your care in your best interests, as evidence of your wishes, feelings, values and beliefs.
ADVOCACY – Advocacy services help people – particularly those who are most vulnerable in society – to:
access information and services
• be involved in decisions about their lives
• explore choices and options
• defend and promote their rights and responsibilities
• speak out about issues that matter to them
ARBITARY – based on random choice or personal whim, rather than any reason or system. “An arbitrary decision may be challenged as unlawful.”
ASSESSMENT OF CAPACITY – the law sets out how you can assess capacity to make a particular decision (see also “LACKING CAPACITY” and “MENTAL CAPACITY”). Anyone carrying out an assessment must apply the following principles:
(i) You must assume that someone over 16 is capable of making a decision unless it is established otherwise, applying the tests set out in the Mental Capacity Act. You should not assume that someone can’t make a decision just because they have a particular disability or condition, or if they have been unable to make that decision at some point in the past, that they are necessarily unable to make that decision now.
(ii) Before applying the test, all practicable steps should be taken to provide help and support to the person concerned to enable them to make and communicate the decision. The person should be given all the information they need to make the decision presented in a way that is as easy to understand as possible e.g braille, pictorial, sign language. Blinking or squeezing a hand may be enough to communicate a decision. If any doubt remains, you may wish to consider obtaining a second opinion from a healthcare professional on whether the person lacks capacity.
(iii) You should not treat someone as lacking capacity just because they choose to make an unwise decision. The test concerns the ability to make a decision, not how sensible you think it is.
ATTORNEY – A person given power to act as best interests decision-maker on a Donor’s behalf through a Lasting Power of Attorney (LPA– see below) or an Enduring Power of Attorney (EPA). EPA’s are only legal if made prior to 2007, and can only relate to decisions about property and finances. After 2007 a person must have made a LPA at a time when they had capacity to do so. An LPA can cover decisions relating to a person’s property & finances, or health & welfare, or both.
An attorney holding an LPA for health & welfare will become the best interests decision maker for decisions within that remit, but is still bound by the MCA for the way in which best interests decisions must be made, ie decisions must be in the Donor’s best interests, and best interests decisions must be made in accordance with MCA s4, including duties of collaboration and involving those engaged in caring for the person or interested in their welfare, as well as putting proper weight on the person’s own wishes and feelings, values and beliefs.

BEST INTERESTS – If anything is done or any decision is made for someone who lacks capacity to make a decision for themselves it must be in their best interests. This means what is best for the person, rather than just what anyone else wants, although the best interests decision-maker must take into account the views, if practicable and appropriate, of various persons; specifically anyone named by the person, anyone engaged in caring for them or interested in their welfare or a legally appointed attorney or deputy. The person’s own wishes, feelings, values and beliefs, both now and in the past, are likely to weigh heavily. Best interests must be interpreted very widely, to include social, and emotional factors, and not just medical welfare or safety.
BEST INTEREST ASSESSOR – this is a professional whose role within the Deprivation of Liberty Safeguards (DOLS) is to assess whether or not there is a deprivation of liberty (see also “DEPRIVATION OF LIBERTY” and “DEPRIVATION OF LIBERTY SAFEGUARDS (DOLS)”), and if so whether it is in the person’s best interests, is necessary to prevent harm to the person and is a proportionate response to the likelihood and seriousness of that harm.

DECISION MAKER (BEST INTERESTS) – An appropriate lasting power of attorney or deputyship may mean that the attorney or deputy is appointed the decision maker. Otherwise, typically the person responsible for delivering the treatment or care about which a best interests decision is required will be the best interests decision maker. E.G. for day to day decisions, this is likely to be a person’s primary carer. Medical treatment best interests decisions would be made by person delivering it e.g. doctor, nurse.
EXCLUDED DECISIONS – Some types of decision (such as consenting to sex, marriage, divorce, adoption and voting) can never be made on a best interests basis by another person on behalf of someone who lacks capacity, even if they are an ‘attorney’ or a ‘deputy’ (see sections 27-29 Mental Capacity Act 2005 (MCA)). The test for capacity to make those decisions, is still covered by the MCA, but if they lack capacity it is not possible to make best interest decisions for them on these issues.
DEPRIVATION OF LIBERTY (DoL) – A person is deprived of their liberty if they are ‘under continuous supervision and control’ and are ‘not free to leave’, there is no valid consent, and it is imputable to the state. A person’s compliance with their care, or the quality or appropriateness of the care they receive is not relevant to the question of whether or not that person is considered to be deprived of their liberty, but are relevant to whether the DoL should be determined to be lawful by the safeguards that must be in place to scrutinise this and to protect their rights. See also “DEPRIVATION OF LIBERTY SAFEGUARDS (DOLS)”
DEPRIVATION OF LIBERTY SAFEGUARDS (DOLS) – The Deprivation of Liberty Safeguards (DOLS) is a legal procedure by which a deprivation of liberty of a resident or patient aged over 18 in a registered care home or hospital can be legally authorised. If there is a potential deprivation of liberty outside the scope of DOLS (eg not in a care home or hospital, or for a child under 18) than this will only be lawful if authorised by a court. Article 5 of the European Convention on Human Rights states that ‘everyone has the right to liberty and security of person. No one shall be deprived of his or her liberty [unless] in accordance with a procedure prescribed in law’.
DEPUTY – A person appointed by the Court of Protection to deal with a specific issue or a range of issues to help a person who lacks capacity and who hasn’t got an attorney.
DEPUTYSHIP – see “DEPUTY”
DONOR – A person who appoints an attorney (see also “LASTING POWER OF ATTORNEY”)

FLUCTUATING CAPACITY – When a person has capacity to make a particular decision at some times, but not at other times (for example, during an acute phase of illness). This should be treated with some care because, of course, capacity is time and decision specific – i.e. the question is whether the person has capacity for the specific decision, at the particular time it needs to be made. Decisions should be deferred until the person has capacity to make them, if possible. Legal advice may be appropriate.

LACKING CAPACITY – When someone is unable to make a particular decision at a particular time because they cannot do one or more of the following four things.
(i) Understand information relevant to that decision.
(ii) Retain that information long enough to be able to make that decision.
(iii) Weigh up the information available to make that decision.
(iv) Communicate their decision. This could be by any possible means, such as talking, using sign language or even simple muscle movement such as eye blinking or squeezing a hand.This inability to make a decision must be because of “an impairment or disturbance in the functioning of the mind or brain” – ie a mental disorder.

Capacity is decision specific and time specific (see Fluctuating Capacity). If someone lacks capacity to make a certain decision at a particular time, they may still have capacity for other decisions then, and may have capacity to make that same decision at other times. One of the principles of the MCA is that any potential best interests decision maker must consider whether the decision may be deferred until the person has regained capacity to make the decision for themselves, if that is likely.
LASTING POWER OF ATTORNEY (LPA) – (See Attorney, above) A legal document that lets a ‘donor’ appoint one or more people (known as ‘attorneys’) to make decisions on their behalf at a point where they are lacking capacity to make that decision. There are two types:
1 Property and financial affairs, e.g. paying bills, organising a pension. Can be used at any time.
2 Personal welfare, e.g. making decisions about medical treatment and how someone is looked after. This can only be used when person lacks capacity for the decisions in question.There are formal requirements, and an LPA must be registered with the Office of the Public Guardian before it can be used.
LIBERTY PROTECTION SAFEGUARDS (the “LPS”) – Proposals for reform of the DOLS system (see above) which were set out in the Mental Capacity (Amendment) Act 2019 but never brought into force, and at the moment do not seem likely to be implemented in the near future.

MENTAL CAPACITY ACT 2005 – The Mental Capacity Act (or MCA) aims to empower and enable people to make their own decisions, and to make sure that people who lack capacity to make decisions are protected by structured decision making, involving them and in their best interests. The five key principles are:
(i) A person must be assumed to have capacity unless it is established that he lacks capacity.
(ii) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(iii) A person should not be treated as unable to make a decision merely because he makes an unwise decision.
(iv) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
(v) 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..
MENTAL CAPACITY – Refers to the ability of a person to make a particular decision at a particular time, whether minor, like what to eat, or major like treatment decisions. If you have mental capacity for a particular decision, you are able to make that decision for yourself, though decisions with capacity can still lead to safeguarding concerns or other interventions. See also “LACKING CAPACITY”.

PPR (PAID PERSON’S REPRESENTATIVE) – A paid RPR (usually an IMCA) – see also “RPR (RELEVANT PERSON’S REPRESENTATIVE)” and “IMCA (INDEPENDENT MENTAL CAPACITY ADVOCATE”)
PARENT / PARENTAL RESPONSIBILITY – A set of duties responsibilities and powers enabling specific adults (or a Local Authority under a Care Order) to make significant decisions about a child up until the age of 18.
POWER OF ATTORNEY – see “LASTING POWER OF ATTORNEY”
PROPORTIONALITY -. The concept of proportionality is used as a criterion of fairness and justice in interpreting the law, . In this context, it refers to striking the correct balance between the restriction imposed on a person lacking capacity and the severity / likelihood of any harm that person may come to.

RPR (RELEVANT PERSON’S REPRESENTATIVE) – A person appointed by the Local Authority as Supervisory Body under the Deprivation of Liberty Safeguards (DOLS) to ensure that a person who is deprived of their liberty under a DOLS authorisation is supported to exercise their legal rights and protections. This will usually be a family or friend, or a PPR (see PPR) if no one appropriate is available to fill this role.

SIXTEEN TO SEVENTEEN YEAR OLDS – most of the Mental Capacity Act applies to anyone aged over 16, although some parts only apply over the age of 18, for example the power to grant an LPA or make an ADRT.Deprivation of liberty can be especially complex for 16-17 year olds.
Under the age of 16, typically it may be possible to rely on the consent of someone with parental responsibility to allow what might otherwise be a deprivation of the child’s liberty. But that is not possible once a child reaches the age of 16.

The Deprivation of Liberty Safeguards, used to authorise a deprivation of liberty in a care home or hospital, only apply over the age of 18.

As such, where there may be a deprivation of liberty for a 16-17 year old, legal advice should be taken, and it is likely that this can only be made lawful by a court order, to meet the young person’s rights under Article 5 of the European Convention of Human Rights.