The Mental Capacity Act (2005) is a new law that will empower and protect any vulnerable person aged 16 and over who is not able to make difficult decisions at a particular time because of illness, injury, a disability or the effects of drugs or alcohol.
The Act makes it clear who can take decisions, in which situations and how they should go about it and allows a person to lawfully provide care and treatment to someone who lacks capacity if it is in their best interest. It will also assist people to plan ahead for a time they are unable to make decisions in the future.
The Act came into force in two stages during 2007.
A new Independent Mental Capacity Advocate (IMCA) service became operational
The new criminal offence of ill treatment and wilful neglect came into force.
Certain sections of the Act i.e. the principles, assessing capacity and determining best interests came into force but only where an IMCA is involved and for the criminal offence.
The Mental Capacity Act Code of Practice, www.opsi.gov.uk/acts/en2005/ukpgaen_20050009_en_cop.pdf, which health and social care professionals are expected to follow, was formally issued on the 23rd of April. It should be used for parts of the Act that are currently in force (as above) and as a general good practice guide until October 2007 when it became statutory.
All other parts of the act came into force introducing the new Lasting Power of Attorney (LPA), Court of Protection and Court Appointed Deputies, and a new Office of the Public Guardian.
The Code of Practice has statutory force for professionals for all aspects of the Act.
The Act replaces current legislation regarding Enduring Powers of Attorney and the appointment of Receivers by the Court of Protection. Enduring Powers of Attorney (EPA) may continue to be used if drawn up before October 2007 even if not registered (although for the EPA to become valid it will still be necessary to register it with the Public Guardians Office once the donor of the power lacks or begins to lack capacity) unless of course the person making the EPA destroys it or replaces it with a LPA after October 2007.
Chapter 13 of the Code of Practice explains in detail the relationship between the Mental Capacity Act and the Mental Health Act. Broadly speaking the Mental Capacity Act may be used to treat people for mental disorder when they cannot consent to the treatment because they lack capacity and where the treatment is in their best interests but cannot be used to detain anyone. If a person might need to be detained for treatment for mental disorder steps to having the person assessed with a view to detention under the Mental Health Act will need to be considered.
The Ministry of Justice has published the following six booklets that provide more information about the Act:
Booklet 1 Making decisions about your health, welfare or finance. Who decides when you can’t?
Booklet 2 Making decisions. A guide for family, friends and other unpaid carers.
Booklet 3 Making Decisions. A guide for people who work in health and social care
Booklet 4 Making decisions. A guide for advice workers.
Booklet 5 Making Decisions An easy read guide
Booklet 6 Making decisions. The Independent Mental Capacity Advocate Service.
The booklets are available on line at:- www.justice.gov.uk/guidance/mental-capacity.htm
The Ministry of Justice website gives background information on the Act, and hosts copies of all the relevant documents including The Code of Practice, a Summary of the Act and a series of booklets for the general public, health and social care staff, advice worker and families, friends and other unpaid and carers, together with an information booklet on the Independent Mental Capacity Advocacy Service (IMCA).
In addition to the making decisions booklets, regular updates regarding the implementation of the Act are produced by the Public Guardianship office.
The latest update can be found here: www.justice.gov.uk/guidance/mental-capacity.htm
Also from 9 May 2007: The responsibilities of the department for Constitutional Affairs have transferred to the new Ministry of Justice, although the link still works, the site is retained for archive and information purposes only and may not contain the most up to date information.
