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The Mental Capacity Act

The Mental Capacity Act 2005 protects people who may lack the mental capacity to make decisions for themselves.

Every day we make decisions about lots of things in our lives. The ability to make decisions is called mental capacity. 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 brain injury or a stroke

We might also consider planning ahead in case we lack mental capacity in the future, because of an accident for example.

The Mental Capacity Act 2005 came into force in 2007 in England and Wales. It protects people aged 16 or over who lack the mental capacity to make decisions for themselves. It also empowers people who may be thought of as unable to make any decision when in fact they may be able to make certain decisions or to make decisions at certain times.

The Act also affects families and carers of such people, health and social care staff, and others who may have contact with them. It covers all sorts of major decisions where a person may lack capacity, such as financial, social care, medical treatment and research arrangements, as well as everyday decisions.

The Act has five key principles:-

  • Every adult has the right to make decisions for themselves, unless it is shown that they are unable to make them.
  • People should be supported as much as possible to enable them to make their own decisions before anyone concludes that they cannot make them.
  • People may make decisions that may seem to others to be strange or unwise.
  • Decisions taken on behalf of people lacking capacity must be in their best interests.
  • The rights and freedom of people who lack capacity must not be restricted unnecessarily.

 

How the Act could affect you

If you are unable to make some decisions the Act explains:

  • that 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 an additional safeguard, the Independent Mental Capacity Advocate (IMCA), to represent you if you lack capacity to make certain important 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 finances and property or your health care and welfare should you ever lack the capacity to make these decisions yourself
  • enables you to make an 'advance 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 made an Enduring Power of Attorney (EPA) before this Act came into force, or are acting on someone's behalf under an EPA it will still be valid unless the person who made the EPA decides to replace it with a LPA. 

If you are a family 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.

If you work in the legal, banking or advice sectors the Act:

  • creates a single, coherent framework for dealing with mental capacity issues and an improved system for settling disputes, dealing with health and welfare issues, and the financial affairs of people who lack capacity.

The Act creates important safeguards:

  • The Public Guardian, who has several duties under the Act including registering LPAs and supervising court-appointed deputies. The Public Guardian is supported in carrying out these duties by the Office of the Public Guardian (OPG)
  • The Court of Protection, which has the power to make declarations about whether someone lacks capacity, to make orders or appoint deputies to act and to make decisions on behalf of someone who lacks capacity.
  • It makes the ill treatment or wilful neglect of a person who lacks capacity a criminal offence.
  • A Code of Practice explains how the law works. The Act says professionals and paid carers, among others, must have regard to the Code.

 

Further Information about the Act

For more information contact the Office of the Public Guardian at:

Email: customerservices@publicguardian.gsi.gov.uk

Telephone: 0300 456 0300

or visit these pages on the Gov.uk website

Gov.uk - Mental Capacity Act, Making DecisionsOpens new window

 Gov.uk - Lasting power of attorney, being in care and your financial affairsOpens new window

There is also a NHS mental capacity website for WalesOpens new window

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