Mental Health guide
Mental Capacity Act 2005
The Mental Capacity Act 2005 came into force fully in October 2007. The
Act generally only affects people aged 16 or over. It provides a legal
framework to empower and protect people who may lack capacity to make some
decisions for themselves.
What is mental capacity?
If you have mental capacity it means that you
are able to make your own decisions. A person who lacks capacity cannot
do one or more of the following things:
- understand information given to them
- retain that information long enough to be able to make a decision
- weigh up information available to make a decision
- communicate their decision
People may have difficulties making some decisions either all or some
of the time. This could be because they have:
- a learning disability
- dementia
- a mental health problem
- a head injury or a stroke
- confusion, drowsiness or unconsciousness because of an illness or the
treatment for it
The Act will affect people in these situations. It will also affect their
families, carers, health and social care staff and other people who may
have contact with them. It could cover all sorts of major decisions where
a person may lack capacity, about things like finance, social care, medical
treatment and research arrangements, as well as everyday decisions.
How the Act could affect you
If you are unable to make some decisions the Act explains:
- you should have as much help as possible to make your own decisions
- how an assessment of capacity should be made about whether you are able
to make a particular decision at a particular time
- that even if you do not have the capacity to make a very complicated decision
for yourself this does not mean that you are unable to make more straightforward
decisions
- that even if someone has to make a decision on your behalf you must still
be involved in this as much as possible
- that anyone making a decision on your behalf must do so in your best interests
- that there is a new safeguard, the Independent Mental Capacity Advocate
(IMCA), to represent you if you lack capacity to make certain decisions and
there is
no one else who can be consulted
If you want to plan ahead
for the future, the Act:
- allows you to make a Lasting Power of Attorney (LPA) enabling you to appoint
someone to make decisions about your health care and welfare should you
ever lack the capacity to make these decisions yourself
- enables you to make an ‘advanced decision to refuse treatment’ if
there is a particular medical treatment you would not wish to receive
at a time in the future when you may lack capacity to refuse it.
If you are a family member or other unpaid carer the Act:
- will help you understand how and when you can act on behalf of someone
who lacks capacity to make decisions - and the safeguards and
limitations if you are doing this
- says that you should be consulted by professionals when, for example,
a doctor makes a decision about treatment for a family member who lacks
capacity
If you work in health and social care the Act:
- provides a framework for assessing a person’s mental capacity and
determining their best interests if they lack capacity to make a decision
- has safeguards and limitations for when you are working with someone who
lacks the capacity to consent to receiving care or treatment
The Act creates
important safeguards:
- a new Court of Protection that will have the power to make declarations
about whether someone lacks capacity, make orders or appoint deputies to
act and
make decisions on behalf of someone who lacks capacity. On many occasions,
there may be other ways of dealing with difficult situations without having
to go to Court, such as via existing complaints procedures.
- a new public official called the Public Guardian who will have several
duties under the Act including registering LPAs and supervising court-appointed
deputies.
The Public Guardian will be supported in carrying out these duties by a
new Office of the Public Guardian(OPG).
- a new criminal offence of ill treatment or wilful neglect of a person who
lacks capacity.
The new Act is supplemented by a Code of Practice which
explains how the new law will work. The Act says that professionals and
paid workers, among others, must have regard to the Code.
How will the Act affect existing arrangements?
If you are a ‘receiver’ (appointed previously by the Court
of Protection) for someone who lacks capacity:
-
you will retain your powers but will be treated as a deputy, appointed
by the new Court of Protection. The Public Guardianship Office will contact
all current receivers so that the necessary administration arrangements
can be made.
If you have made an Enduring Power of Attorney (EPA) or are
acting on someone’s behalf under an EPA:
-
it will still be valid after October 2007, even if it is not yet registered,
unless the person who made the EPA decides to destroy it and replace it
with an LPA instead.
For more information contact the Public Guardianship Office at:
Email: [email protected]
Website: www.guardianship.gov.uk
Telephone: 0845 330 2900.