The Mental Capacity Act 2005

The Mental Capacity Act came fully into force on 1 October 2007. It aims to protect people who cannot make decisions for themselves due to a learning disability or a mental health condition, for example Alzheimer's disease, or for any other reason. It provides clear guidelines for carers and professionals about who can take decisions in which situations.

Overview  

• The Act deals with the assessment of a person's capacity and acts by carers and people working with those who lack capacity
• The Act sets out provisions whereby people can plan ahead for a time when they may lack capacity
• The Act creates important safeguards

There are five key principles in the Act:

• Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise.
• A person must be given all practicable help before anyone treats them as not being able to make their own decisions.
• Just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
• Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests. 
• Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.

The capacity to make decisions

The Act sets out a single clear test for assessing whether a person lacks capacity to make a particular decision at a particular time.

The Act states that everyone should be treated as able to make their own decisions until it is shown that they can't. It also aims to enable people to make their own decisions for as long as they are capable of doing so.

A lack of capacity could be because of a severe learning disability, dementia, mental health problems, a brain injury, a stroke or unconsciousness due to an anesthetic or a sudden accident.

The Act says that a person is unable to make a decision if s/he is unable:

1. to understand the information relevant to the decision, or
2. to retain that information, or
3. to use or weigh that information as part of the process of making the decision, or
4. to communicate his/her decision

A person who is able to do these things in relation to a decision, but only with support, can still have capacity in relation to that decision provided they have the right support.
The Code of Practice (Code) provides guidance on how the Mental Capacity Act 2005 (Act) works on a day-to-day basis. It has case studies and explains in more detail what the key features of the law are.

When people lack the capacity to make decisions

The Act sets out various provisions to protect people who do not have the capacity (as defined by the Act) to make decisions.

When people lose their capacity to make decisions

The Act intends to protect people who lose the capacity to make their own decisions. It will:

• allow the person, while they are still able, to appoint someone (for example a trusted relative or friend) to make decisions on their behalf once they lose the ability to do so. This will mean they can make decisions on the person's health and personal welfare. Previously, the law only covered financial matters.
• ensure that decisions that are made on the person's behalf are in their best interests. The Act provides a checklist of things that decision makers must work through.
• introduce a Code of Practice for people such as healthcare workers who support people who have lost the capacity to make their own decisions.

When a decision is to be made on behalf of a person who lacks capacity, and the following conditions apply, then the Act gives the person the right to an Independent Mental Capacity Advocate (IMCA). 

An IMCA must be instructed, and then consulted, for people lacking capacity who have no-one else to support them (other than paid staff), whenever:

• An NHS body is proposing to provide serious medical treatment, or
• An NHS body or local authority is proposing to arrange accommodation (or a change of accommodation) in hospital or a care home,
  and
• The person will stay in hospital longer than 28 days, or They will stay in the care home for more than 8 weeks.

An IMCA may be instructed to support someone who lacks capacity to make decisions concerning;

• Care reviews, where no-one else is available to be consulted
• Adult protection cases, whether or not family, friends or others are involved.

The IMCA’s role is to support and represent the person who lacks capacity, and any information or reports provided by an IMCA must be taken into account as part of the process of working out whether a proposed decision in the person’s best interests.  Advocates may find themselves providing advocacy for people who lack capacity to make decisions, but where the conditions are such that the person will not be entitled to an IMCA.

Role of the Independent Mental Capacity Advocate (IMCA)

The Independent Mental Capacity Advocate role is very specific and time restricted and involves supporting and representing the person who lacks capacity to make the decision in question.  Their duties are to:

• Support the person who lacks capacity and represent their views and interests to the decision maker
• Obtain and evaluate information, both through interviewing the person and through examining relevant records and documents
• Obtain the views of professionals and paid workers providing care or treatment for the person who lacks capacity
• Identify alternative courses of action
• Obtain a further medical opinion, if required
• Prepare a report (that the decision maker must consider)

In England, regulations have extended the role of the IMCA’s so they may also be asked to represent the person lacking capacity where there is an allegation of or evidence of abuse or neglect to or by a person who lacks capacity.  In adult protection cases, an IMCA can be appointed even though the person has family or friends.  An IMCA may also be involved in care reviews relating to accommodation and in relation to Deprivation of Liberty cases

The National Assembly for Wales has also extended the role of the IMCAs to cover accommodation reviews and adult protection cases.