Mental Capacity Act (2005)

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Introduction

The Mental Capacity Act is a new law that affects people who are 16 and over who live in England and Wales – it will affect us all. The Act sets out safeguards to empower and protect a person who is assessed as not having mental capacity.

The Act makes it clear that any assessment of a person’s capacity must be ‘decision specific’. This means that:

  • The assessment of capacity must be about the particular decision that has to be made at a particular time and is not about a range of decisions
  • If someone cannot make complex decisions, this does not mean that he/she cannot make simple decisions
  • You cannot decide that someone lacks capacity based upon his/her age, appearance, condition or behaviour

People lacking capacity will include those with dementia, learning disability, mental health problems, brain damage, toxic confusional state and physical injury or illness. The mental incapacity may be permanent or temporary.

The Act is being implemented in two stages with the first stage concerning the Independent Mental Capacity Advocates and the new criminal offence beginning on 2nd April 2007. By October all other parts of the Act will be in place.

Background

  • The Mental Capacity Act (MCA) 2005 is the end result of several years of work looking at the law and guidance which was in existence.
  • It has clarified a number of legal uncertainties by reforming and updating the current law where decisions need to be made on behalf of others.
  • The Act tells people what to do to help someone make their own decision; how to work out if someone can make their own decision and what to do if someone cannot make their own decision
  • It covers a wide range of decisions on personal welfare (including health) as well as financial matters.

Key Principles

There are five important things to think about:

  1. Start off by thinking that everyone can make their own decisions.
  2. Give a person the support he/she needs to make decisions before concluding that he/she cannot make his/her own decisions.
  3. Nobody should be stopped from making a decision just because others may think it is unwise or eccentric.
  4. Anything done for, or on behalf of, a person without capacity must be in his/her “best interests” - a decision which is arrived at by working through a checklist.
  5. When anything is done or decided for a person without capacity, it must be the least restrictive of his/her basic rights and freedoms.

What does the Act do?

  • It aims to clarify a number of legal uncertainties.
  • It reforms and updates the current law where decisions need to be made on behalf of others, incorporating good practice into statute and introducing a process.
  • It sets out a single test for assessing capacity which is a ‘decision specific test’ (covering emergency decisions; day to day decisions and significant, but not urgent, decisions – including where there are a series of minor decisions which together become significant).
  • It covers a wide range of decisions, on personal welfare (including health care) as well as financial matters and substitute decision-making by attorneys or court appointed ‘deputies’. It also clarifies the position where no such formal process has been adopted.
  • It includes new rules to govern research involving people who lack capacity and provides for new independent mental capacity advocates to represent and provide support to such people in relation to certain decisions.
  • It provides recourse, where necessary and at the appropriate level, to a court with power to deal with all personal welfare (including health care) and financial decisions on behalf of adults who are lacking capacity.
  • It replaces the current Court of Protection with a new Court of Protection which has more comprehensive powers.

What does the act mean?

  • It puts in place a code of practice to give guidance about the legislation. The code must be followed by those working in a professional capacity (e.g. doctors and social workers).
  • The Act offers appropriate protection for carers (both family members and unpaid carers), as well as health and social care professionals, to those who act in the reasonable belief that they are doing so in the person’s ‘best interests’ when the principles of the Act are followed.

See glossary of terms for further explanation

  • It sets out a new criminal offence* of ill treatment or wilful neglect.
  • It sets out rules on research involving people who lack capacity
  • It allows for advance decisions* to refuse treatment
  • It establishes the role of an Independent Mental Capacity Advocacy (IMCA) Service* for those persons who lack mental capacity and have no friend, relative or unpaid carer to make the make a decision in his/her ‘best interests’
  • The new Act has established a new:

Want to find out more?

To find out more, you can click on any of the links on this page.

Glossary of Terms

Advance Decisions – the Act sets out the provisions to enable adults aged 18 and over (who have the capacity) to make an advance decision to refuse medical treatment. It also puts in safeguards and procedures in relation to advance decisions to protect the rights and interests of people who lack capacity – while enabling respect of any previous qualifying advance decisions.

Best Interests – it is a key principle of the act that all steps and decisions taken for someone who lacks capacity must be taken in the person’s best interests. Determining what is in a person’s best interests requires considering all the relevant circumstances. It must not be based on any unjustified or prejudicial assumptions.

Code of Practice – it provides guidance to all those working with and/or caring for adults who lack mental capacity, including family members, professionals and carers. It describes the responsibilities when acting or making decisions with, or on behalf of, individuals who lack the capacity to do these things for themselves. It focuses on those who will have a duty of care to a person lacking capacity and explain how the legal rules set out in the legislation will work in practice. The code also provides information on how to obtain more detailed guidance from other sources, where this is particularly relevant.

There are certain categories of people (such as doctors and social workers) who are under a duty to have regard to the Code when acting in relation to a person who lacks capacity. Other people, who are not placed under this legal duty, will still be expected to follow the guidance of the Code.

Court of Protection – a new superior court, to be known as the Court of Protection, will have jurisdiction to make orders and declarations and to appoint substitute decision makers (deputies) where a person lacks mental capacity.

Criminal Offence - the Act introduces a new criminal offence of ill treatment or neglect of a person who lacks mental capacity. A person found guilty of such an offence will be liable for imprisonment for up to five years.

Independent Mental Capacity Advocacy Service – it will help certain people who do not have mental capacity, to make difficult decisions such as medical treatment choices or changes to residence. It is aimed specifically at those people who do not have relatives or friends to speak for them. Particularly vulnerable people who lack capacity to make their own decisions will be supported and represented by an Independent Mental Capacity Advocate (IMCA)

Lasting Powers of Attorney – in October 07 an LPA will replace enduring powers of attorney as the primary way of choosing a decision maker to act in the event of a loss of mental capacity. In addition to property and affairs (which EPAs provide powers in respect of), people will be able to appoint an attorney to make decisions about their personal welfare, including healthcare, at a time when they may lack capacity to make decisions for themselves

Contact Details

By Post

Adult Care Branch
Department of Community Services
Wiltshire County Council
3rd Floor MECH
County Hall
Bythesea Road
Trowbridge
Wiltshire
BA14 8LE

By Email

socialservices@wiltshire.gov.uk

By Telephone

01225 713923

By Fax

01225 712953

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