Mental Capacity Act

Mental Capacity Act

Background

The government estimates that over two million people will have difficulty making some decisions, although the majority of them will be able to make some decisions for themselves, especially if they are given help.
These include approximately:
• 840,000 people with dementia
• 150,000 people with a severe learning disability
• 1.2 million people with a mild to moderate learning disability
• 120,000 people with a severe brain injury
• Many more people with short term difficulties such as strokes, accidents and drug and alcohol use

What is mental capacity?

Mental capacity is the ability of someone to make decisions. These can range from day-to-day decisions, such as deciding what to wear in the morning, what to eat for breakfast, or whether or not to have a shave, to extremely serious ones that may have legal consequences, like moving home, buying goods and services, making a will  or having an operation.

A lack of mental capacity could be due to:
• a stroke or brain injury. 
• a mental health issues.  
• dementia.  
• a learning disability.  
• confusion, drowsiness or unconsciousness because of an illness or the treatment for it. 
• substance misuse.   

Very few people are incapable of making any decisions at all. The Mental Capacity Act (“The MCA or “The act”) makes it absolutely clear that everyone should be assumed to be able to take all their own decisions until it is shown that they can’t. What matters is the person’s ability to carry out the processes involved in making the decision – and not the outcome.  The MCA also says that professionals must make every reasonable effort to help someone make their own decision.

What is the Mental Capacity Act 2005?

The Mental Capacity Act 2005 creates a clear legal structure for the care and treatment of people who have difficulty making decisions. It promotes best practice in supporting people who may lack mental capacity.
The MCA sets out in law

• what help should be given to people lacking mental capacity
• how they should be helped to make decisions and
• what happens when people are unable to make decisions including when they lack capacity to make a particular decision.

Who is affected by the act?

The MCA affects
• a person who lacks mental capacity
• everyone who makes decisions on behalf of people who lack mental capacity (which may include family, paid and unpaid carers, friends or professionals)
• anyone who has a relative or friend who may lack capacity.

What the act does:

• strengthens the right of people who lack capacity to make their own decisions and to be supported to do so
• protects those who may lack capacity to make a particular decision
• sets out in which situations other people can make decisions and act on another person’s behalf
• ensures people are always involved in decisions that affect them
• help resolve disputes
• clarifies the process for caring for people who may lack capacity.
• makes clear how decisions should be made for your relative or friend if they are unable to make those decisions for themselves 
• sets out when you should be consulted about decisions made on behalf of your relative or friend 
• sets out how your relative or friend is protected when others are making decisions on their behalf   
• provides a clear legal framework for dealing with mental capacity issues including any assessment of their need for treatment, services or support. 
• supports everyone's right to make decisions for themselves wherever possible
• gives the right to have their wishes and views and the views of their relatives and friends taken account of in decisions that will affect them.
• establishes a legal duty to ensure that any decisions and actions taken are done in the person’s best interests
• provides for advance decisions about medical treatment (sometimes known as "living wills"). These can be made by people while they still have capacity so that they can decide what they want to happen in the future when they might lack capacity
• introduces new criminal offences of "ill-treatment" and "wilful neglect" with a possible sentence of up to five years in prison
• introduces a duty to appoint an independent mental capacity advocate (IMCA) to represent certain people who lack capacity, in specific situations
• gives other people the power to take decisions for them about their finances. health care or welfare under the arrangement called "Lasting Power of Attorney”
• sets up new arrangements around the Court of Protection and Public Guardian’s role.

Deprivation of liberty safeguards

Introduces safeguards for people who lack capacity and applies to everyone who works in health and social care and is involved in the (residential) care, treatment or support of people aged 16 and over who live in England and Wales and who are unable to make all or some decisions for themselves. For more information click here

Independent Mental Capacity Advocates (IMCAs)

IMCAs support  and represents people who lack capacity aged 16 and over with nobody else to speak for them. For more informationabout IMCAs click here

Carers

Many informal, unpaid carers look after a person who lacks capacity to make decisions. Usually these carers are family members who have no formal authority to make decisions, but some will have the power to manage the person’s property and affairs, with either Receivership or an Enduring Power of Attorney.
Anyone who was a receiver with Enduring Power of Attorney will have become a deputy after October 2007. Carers who are Attorneys or Deputies under the Mental Capacity Act  are under a legal obligation to follow the five key core principles of the  MCA

Staff

The Mental Capacity Act applies to all staff working with people who may lack capacity to make certain decisions. Staff are obliged to follow the five key core principles of the MCA and to have regard to the Code of Practice to the MCA.
Staff  may include:
• people working in a professional capacity, such as doctors, nurses, social workers, dentists, physiotherapists, psychologists

and anyone

• who is a deputy appointed by the Court of Protection
• acting as an Independent Mental Capacity Advocate (IMCA)
• carrying out research involving people who cannot make a decision about taking part

Links to related information on the H&F web site 

• Client affairs ( receivership)
• Safeguarding adults

Definitions of some key terms - view glossary for a fuller list

Five key core principles of the act with more about...   
Best interests
Court of protection 
Lasting power of attorney 

Useful external links, publications and websites

View the following external links for more information and downloadable booklets about the Mental Capacity Act and related items. All links takes you to a new window