Mental Capacity Act

About the Act

The Mental Capacity Act 2005 came into force during 2007.

The law affects anyone aged 16 or over who is unable to make some or all decisions for themselves. This could be because of:

  • a learning disability
  • mental health difficulties
  • brain injury
  • dementia
  • alcohol or drug misuse
  • the side effects of medical treatment or any other illness or disability

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What the Act provides

The Mental Capacity Act is there to:

  • strengthen your right to make your own decisions and to be supported to do so
  • protect those who may lack capacity to make a particular decision
  • set out in which situations other people can make decisions and act on your behalf if you are unable to do so
  • make sure you are involved in decisions that affect you
  • help resolve disputes
The Act will help and support you if you:
  • currently find it difficult to make decisions sometimes or all of the time
  • want to plan ahead in case you are unable to make decisions in the future

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Principles for practice

The Act sets out five 'statutory principles' or key rules that underpin the legal requirements of the Mental Capacity Act:

  1. You are legally able to make a decision for yourself unless it is shown that you are unable to make it
  2. You will be supported as much as possible to make your own decisions
  3. You will be allowed to make a decision that may seem to others to be an unwise or strange decision
  4. If you lack capacity to make a decision, any decisions or actions we take on your behalf will always be done in your best interests
  5. We will always consider how to act in a way that best supports your freedoms and rights

The Act is accompanied by a Code of Practice, which provides more in-depth guidance on these principles in practice.

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Deciding what is in your best interest

The Act makes it clear who can take decisions in which situations and how they should go about this. It enables people to plan ahead for a time when they lack capacity. The Act covers major decisions about someone's property and affairs, healthcare treatment and where the person lives, as well as everyday decisions about personal care, where the person lacks capacity to make the decisions themselves.

Before making a decision that will be in your best interests, we consider:

  • your wishes, feelings, values and beliefs - which you may previously have put in writing, before you lost mental capacity
  • whether a decision can be delayed if there is a possibility that you may be able to make it yourself in the future
  • the views of your family members, parents, carers and other people interested in your care, if this is practical and appropriate
  • whether any decisions have already been made based merely on your appearance, age, medical condition or behaviour, and not what would be in your best interests
  • whether other people, including family members, are more motivated by a desire to bring about your death or have been making assumptions about your quality of life, where decisions are being made about treatment that is needed to keep you alive.

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Independent Mental Capacity Advocate (IMCA)

The Act has created the Independent Mental Capacity Advocate (IMCA) service. The IMCA service supports people over the age of 16 who have been assessed as having no capacity to make specific decisions about:

  • future long-term accommodation moves (such as from hospital to residential care)
  • serious medical treatment

and who have no family or friends that it would be appropriate to consult about those decisions.

IMCA can also be involved in adult protection cases, whether or not family friends or others are involved.

The aim of the IMCA service is to provide independent safeguards for people who lack capacity to make certain important decisions and, at the time such decisions need to be made, have no-one else (other than paid staff) to support or represent them to be consulted.

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Office of the Public Guardian

The role of the Office of the Public Guardian is to protect people who lack capacity from abuse.

The Public Guardian, supported by the Office of the Public Guardian (OPG), helps protected people who lack capacity by:

  • Setting up and managing a register of Lasting Powers of Attorney (LPA);
  • Setting up and managing a register of Enduring Powers of Attorney (EPA);
  • Setting up and managing a register of court orders that appoint Deputies;
  • Supervising Deputies, working with other relevant organisations (for example, social services, if the person who lacks capacity is receiving social care);
  • Instructing Court of Protection (COP) Visitors to visit people who may lack mental capacity to make particular decisions and those who have formal powers to act on their behalf such as Deputies;
  • Receiving reports from Attorneys acting under LPAs and from Deputies; and
  • Providing reports to the COP, as requested, and dealing with cases where there are concerns reaised about the way in which Attorneys or Deputies are carrying out their duties.

The Public Guardian is also personally responsible for the management and organisation of the OPG, including the use of public money and the way it manages its assets. A separate Public Guardian Board scrutinises the work of the Public Guardian and then reports to the Lord Chancellor.

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Court of Protection

The Court of Protection deals with decision making for adults (and children in a few cases) who may lack capacity to make specific decisions for themselves. The new Court of Protection replaces the old court of the same name, which only dealt with decisions about property and affairs. As well as property and affairs the new Court also deals with serious decisions affecting health, care and other welfare matters.

If someone you care for lacks mental capacity to make certain decisions and there is no substitute decision maker around, such as someone with a Lasting Power of Attorney, the Court can look at the case and decide how decisions should be made and by whom.

The Court of Protection now has a dedicated customer enquiry service. For any queries relating to applications to the Court or to request Court of Protection forms:

Phone: 0300 456 4600

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Preparing for the future in case I lack capacity

There are several things you can do to prepare for the future, either by setting out some decisions in advance or by letting people know what you would like to happen if you lose the capacity to make decisions. It can also be helpful for your family, future carers and for the people you have chosen to make decisions for you, to have your wishes clearly outlined.

The Mental Capacity Act allows you to appoint someone else to make decisions for you in the future, should you lack capacity to do this yourself.

The Act allows you to formally appoint someone else to make decisions for you in the future. You can appoint a Lasting Power of Attorney (LPA) to make decisions about your health and personal welfare for a time when you might lack capacity. You can also appoint a separate LPA to make decisions about the future management of your property and affairs.

You should think about appointing an LPA now while you have mental capacity. An LPA cannot be put in place for you once you lose mental capacity, although the Court of Protection may be able to help.

Making advance decisions about life-sustaining treatment

Some people choose to mak an advance decision knowing that it may have the effect of shortening their life.

'Life-sustaining treatment' is any treatment that is needed to keep you alive without which you might die. There are some specific rules to follow if you want to make an advanced decision to refuse life-sustaining treatment.

This type of advance decision must:

  • be in writing; and
  • contain a specific statement which says that your advance decision applies even if your life is at risk.

The decision must be:

  • signed by you (or by someone else that you appoint, in your presence, if you are unable to sign);
  • signed in front of a witness; and
  • signed by the witness in front of you.

If you do not follow these rules then your advance decision to refuse treatment may not apply to life-sustaining treatment.

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Modified: 2012-11-23
Published: Wed, 19 Dec 2012 16:21:09
Author: Allison Helyer
Editor: Allison.Helyer
RDCMS ID: 30021