The Mental Capacity Act has been in force since 1 October 2007. It covers all sorts of situations where health and social care decisions are made by and for people aged 16 and over. It requires that people are involved in decisions and enabled to make decisions for themselves where they have capacity to do so. The Act sets out a framework for decision making by those who make the decision on behalf of a person who lacks capacity. The Act enables people to plan ahead for their care and treatment if they think they may lack capacity in the future.
What is mental capacity?
Every day, we make decisions about our lives. These decisions could be about simple things like what we eat and what we wear. They could also be about major issues, such as our health, our care and our finances. Our ability to make a decision is called mental capacity.
Who does the Mental Capacity Act affect?
People who may have problems making a decision include people with:
- A learning disability
- Mental health problem
- Dementia
- Brain injury
This list is not exhaustive and most importantly, it does not follow that because a person has a condition similar to the above, that they do in fact lack capacity.
The Mental Capacity Act also affects people who have to make a decision on behalf of those who lack capacity to make it. These people might be:
- Carers/family members
- Doctors (GPs and Psychiatrists)
- Nurses and Healthcare Assistants on the ward or in the community
- Psychologists
- Social workers
- Advice workers
What are the main principles of the Mental Capacity Act?
The five key principles of the Mental Capacity Act are:
- A person must be assumed to have capacity to make a decision unless proved otherwise.
- Someone cannot be treated as lacking capacity until all practical steps have been taken to help them to make their own decision. This could include help from a speech therapist, using sign language, having information provided in different formats, or giving treatment which will improve their mental condition. Even if someone finds some decisions difficult, they may still be able to take other decisions themselves. If someone has to make a decision for someone else they should still involve that person as much as possible.
- Just because someone wants to do something which most people consider unwise, strange or eccentric, this does not necessarily mean they lack capacity.
- If a decision is made for someone else it must be in their best interests.
- Any interference in someone’s right to make decisions must take the form of the least restrictive option, and respect their basic rights and freedoms.
What is an Independent Mental Capacity Advocate (IMCA)?
An IMCA supports and represents people who lack capacity to make a decision when there is no one else to consult and when certain serious decisions might be about to be made on their behalf. Those decisions are either about serious medical treatment or a change of accommodation. The IMCA looks at the way the decision is being made but do not make the decision on behalf of the person they represent. They are independent of Nottinghamshire Healthcare, and always aim to ensure that the best interests of the person are being considered.
How does the Mental Capacity Act affect families and carers?
What else does the Mental Capacity Act do?
- The Act has set up a Court of Protection and a Public Guardian to safeguard people who lack capacity.
- The Act has introduced a new criminal offence of ill treatment or wilful neglect of a person who lacks capacity. Several prosecutions have resulted in convictions since the Act came into force.
How can I plan ahead with the Mental Capacity Act?
There are three key ways which you might want to use in order to plan for a time when you may lack capacity. Find out more about Lasting Power of Attorney, Advance Decisions to Refuse Treatment and Advance Statements.
What are the Deprivation of Liberty Safeguards?
The Deprivation of Liberty Safeguards are procedures which are part of the Mental Capacity Act. The Safeguards protect those inpatients of the Trust who lack capacity and who are not detained under the Mental Health Act but need to be looked after in a particularly restrictive way. The safeguards are particularly relevant to patients who have dementia or who have learning disabilities but may apply to patients who have other conditions. The care regime must be examined by an external agency such as the Local Authority or Primary Care Trust who may (or may not) give permission for the restrictions to continue for a defined length of time and may place conditions on the Trust. The permission is reviewable and open to challenge by the patient or those representing the patient.
The Department of Health has published guidance on the Deprivation of Liberty Safeguards.
How can I find out more?
Should you wish to set up a Lasting Power of Attorney you can consult a solicitor or download a form from the DirectGov website. You can also get a copy of the Code of Practice and other information from this website.
Visit the Department of Health website for copies of the MCA information leaflet in a variety of languages as well as information aimed at unpaid carers, people who want to plan ahead and professionals working with adults who may not have capacity.
