The Mental Capacity Act 2005 (MCA) provides a statutory framework for making decisions and acting on behalf of individuals who lack mental capacity and makes a number of changes to the process of establishing whether a person has capacity and how decisions for a person who lacks capacity are made. The MCA is supported by a Code of Practice which provides guidance and
Mental Capacity is defined by the MCA 2005: Code of Practice as ‘The ability to make a decision’ which include decisions that affect day to day life as well as more significant decisions including agreeing to medical treatment or making a will.
The MCA 2005 has introduced five key principles which have to be taken into account when determining if a person has capacity to make a decision or when a decision is made on behalf of a person who lacks capacity.
- Presumption of Capacity – every adult is presumed to have capacity unless proved otherwise.
- Participation in Decision Making – every adult has a right to be given all appropriate support in making a decision before it is decided that they do not have capacity
- Eccentric and Unwise Decisions – every adult has a right to make decisions that may be seen as eccentric or unwise.
- Best Interest Concept – everything done for or on behalf of a person lacking capacity must be in their best interests.
- Least Restrictive Intervention – everything done for or on behalf of a person who lacks capacity must be the least restrictive of that person’s basic rights.
The MCA 2005 has created a New Court of Protection which has the power to deal with decisions about the health and welfare of a person who lacks capacity as well as decisions about their property and financial affairs. The Court can also determine whether a person lacks capacity to make a particular decision.
In the situation where a one off decision by the Court is not sufficient, the Court has the power to appoint a Deputy to make these decisions on behalf of the person who lacks capacity. Deputies replace the current system of Receivership and in addition to dealing with Property and Affairs a Deputy can also be appointed to make Health and Welfare decisions.
The Office of the Public Guardian (OPG) has replaced the existing Public Guardianship Office and it’s role is to protect people who lack capacity. To achieve this the OPG will maintain a register of all EPA’s, LPA’s and Deputies appointed. They will supervise Deputies and work closely with other organisations to help protect people who lack capacity. They will also be responsible for sending Court of Protection Visitors to visit people as and when necessary.
The MCA has also introduced the Independent Mental Capacity Advocate (IMCA) service. This new service will help support vulnerable people when important decisions need to be made by the NHS and Local Authorities about changes in accommodation, serious medical treatment and/or a care review. NHS and Local Authorities have a duty to involve the IMCA when the person who lacks capacity has no one appropriate to support and represent them.
It is important to note that anybody who is working with or caring for adults who may lack capacity has a legal duty to have regard to the MCA 2005: Code of Practice and the Act makes it a criminal offence to neglect or ill treat a person who lacks Capacity. A person found guilty could face up to 5 years in prison.
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