Mental Capacity Act 2005 - A Basic Introduction

Introduction

The Mental Capacity Act (2005) is a new law that empowers and protects 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 Mental Capacity Act (MCA) 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 also assists 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. 

From 1st of April 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 5 principles, assessing capacity and determining best interests came into force.

From 1st of October 2007

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 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.

MCA Code of Practice

The MCA Code of Practice provides guidance to anyone who is working with and/or caring for adults who may lack capacity to make particular decisions. It describes their responsibilities when acting or making decisions on behalf of individuals who lack the capacity to act or make these decisions for themselves. In particular, the Code of Practice focuses on those who have a duty of care to someone who lacks the capacity to agree to the care that is being provided.

The Code of Practice has statutory force for professionals for all aspects of the Act. http://www.publicguardian.gov.uk/mca/code-of-practice.htm

Relationship with Mental Health Act 1983

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.

Further Information about the Act

The Office of the Public Guardian 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 0Capacity Advocacy Service (IMCA).

The Code of Practice

The Code of Practice provides guidance to anyone who is working with and/or caring for adults who may lack capacity to make particular decisions. It describes their responsibilities when acting or making decisions on behalf of individuals who lack the capacity to act or make these decisions for themselves. In particular, the Code of Practice focuses on those who have a duty of care to someone who lacks the capacity to agree to the care that is being provided.

The Code of Practice has statutory force for professionals for all aspects of the Act. http://www.publicguardian.gov.uk/mca/code-of-practice.htm

Making Decisions booklets:

• 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:- http://www.publicguardian.gov.uk/forms/additional-publicationsa-newsletters.htm together with copies of the Mental Capacity Act - Updates which are issued by the Office of the Public Guardian on a regular basis. 

Disclaimer

Information contained within these pages relating to the Mental Capacity Act 2005 is not intended to be a definitive statement in relation to the law and it is recommended that, where necessary, people seek independent legal advice.