The Mental Capacity Act 2005

( A brief synopsis By Gareth Wynne Jones)

It's nearly upon us:-The Mental Capacity Act (2005) will come into force in April 2007 and clarifies the law under which decisions are made for those who lack the mental capacity to make decisions for themselves.

Failure to comply with the requirements of the Act exposes organisations and individuals to litigation or judicial review. The Act introduces a new criminal offence of ill treatment or neglect of a person who lacks capacity. A person found guilty of such an offence may be liable to imprisonment for a term of up to five years.

Read all about it ( Direct links to the documentation are at the end of this article )

The Mental Capacity Act 2005 provides a framework to 'empower and protect vulnerable people' that are not able to make their own decisions. It clarifies who can make decisions, in which situations, and how they should go about this. It enables individuals (empowers those who may loose capacity) , to plan ahead for a time when they may lose capacity to make decisions, to name a person to act as spokesperson, to give them a lasting powers of attorney (LPAs) over personal affairs. You can also draw up an advance decisions document to refuse treatment – "Statutory rules with clear safeguards confirm that people may make a decision in advance to refuse treatment if they should lose capacity in the future. It is made clear in the Act that an advance decision will have no application to any treatment which a doctor considers necessary to sustain life unless strict formalities have been complied with. These formalities are that the decision must be in writing, signed and witnessed. In addition, there must be an express statement that the decision stands “even if life is at risk”. (But this is about as clear as mud)

People with no one to act for them will also be able to leave instructions for their care under this new Act.

A new court - the ‘Court of Protection’ - is being set up to consider financial or serious healthcare cases. The court will look at cases where the person’s carer and healthcare worker or social worker, disagree on what are the person’s best interests.

Guidance on the Act is given in 'The Code of Practice'. People who are placed under a duty to have regard to the Code of Practice include those working in a professional capacity e.g. Psychiatrists, doctors and social workers.

The whole Act is grounded to five key values:

A presumption of capacity - every adult must be assumed to have capacity to make decisions and therefore the right to make his or her own decisions, unless it is proved otherwise;

A right for individuals to be supported to make their own decisions - Individuals must be given the opportunity, with all appropriate help if necessary, to come to a decision, before anyone decides that they cannot make their own decisions;

That an individual has the right to make, what others might see as eccentric or unwise decisions?

Best interests – An action carried out 'on-behalf of' or 'on an individuals person' who is judged as, assessed to be, viewed as, without capacity must be in that individuals best interests; and

Least restrictive intervention – anything done for, or on behalf of people without capacity, should be the least restrictive to / of their basic rights and freedoms.

Independent Mental Capacity Advocate (IMCA)
Particularly vulnerable people who lack capacity to make their own decisions will be supported and represented by an Independent Mental Capacity Advocate (IMCA) service - planned for April 2007.

The IMCA service will mean that certain people who lack capacity - this may include people with dementia, Alzheimer's disease, brain injury or a very severe learning disability - will be helped to make difficult decisions such as medical treatment choices or where they live. It is aimed at people who do not have relatives or friends to speak for them.

The Mental Capacity Act itself.... LINK long and technical ( The Parlimentary Bill )

The response to it from the The Royal College of Psychiatrists LINK

The Draft Code of Practice (The whole document with 184 pages) LINK

Easy Read Summary of the Consultation on the Mental Capacity Act Code of Practice LINK

The Draft Code of Practice part 1 LINK

The Draft Code of Practice part 2 LINK

HAPPY READING