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Mental Capacity Act 2005

The Mental Capacity Act 2005 governs decision-making on behalf of adults where they lose mental capacity at some point in their lives or where the incapacitating condition has been present since birth. The Act received Royal Assent on 7 April 2005 and was implemented in full from 1st October 2007.

Please see the following publications for further information on the Mental Capacity Act.

If you have further questions about the implementation of the Mental Capacity Act in Dudley, please email Matt Bowsher, Assistant Director for Quality and Commissioning.

Please use the following links to jump to the related section:

What is the Mental Capacity Act?

The Act enshrines in statute current best practice and common law principles concerning people who lack mental capacity and those who take decisions on their behalf.

The Act replaces the current enduring powers of attorney and Court of Protection receivers with new arrangements.

The Act deals with the assessment of a person’s capacity and acts by carers of those who lack capacity

  • Assessing lack of capacity
    The Act sets out a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time. It is a "decision-specific" test. No one can be labelled ‘incapable’ as a result of a particular medical condition or diagnosis.

  • Best Interests
    Everything that is done for or on behalf of a person who lacks capacity must be in that person’s best interests. The Act provides a checklist of factors that decision-makers must work through in deciding what is in a person’s best interests.

  • Acts in connection with care or treatment
    Section 5 clarifies that, where a person is providing care or treatment for someone who lacks capacity, then the person can provide the care without incurring legal liability. The key will be proper assessment of capacity and best interests.

Restraint is only permitted if the person using it reasonably believes it is necessary to prevent harm to the incapacitated person, and if the restraint used is proportionate to the likelihood and seriousness of the harm.

The Act deals with two situations where a designated decision-maker can act on behalf of someone who lacks capacity

  • Lasting powers of attorney (LPAs)
    The Act allows a person to appoint an attorney to act on their behalf if they should lose capacity in the future. This is like the current Enduring Power of Attorney (EPA), but the Act also allows people to let an attorney make health and welfare decisions.

  • Court appointed deputies
    The Act provides for a system of court appointed deputies to replace the current system of receivership in the Court of Protection. Deputies will be able to take decisions on welfare, healthcare and financial matters as authorised by the Court but will not be able to refuse consent to life-sustaining treatment. They will only be appointed if the Court cannot make a one-off decision to resolve the issues.

The Act creates two new public bodies to support the statutory framework, both of which will be designed around the needs of those who lack capacity

A new Court of Protection will be the final arbiter for capacity matters. It will have its own procedures and nominated judges.

  • A new Public Guardian
    The Public Guardian and his/her staff will be the registering authority for LPAs and deputies. They will supervise deputies appointed by the Court and provide information to help the Court make decisions. They will also work together with other agencies, such as the police and social services, to respond to any concerns raised about the way in which an attorney or deputy is operating.

The Act also includes three further key provisions to protect vulnerable people

  • Independent Mental Capacity Advocate (IMCA)
    An IMCA is someone appointed to support a person who lacks capacity but has no one to speak for them. The IMCA makes representations about the person’s wishes, feelings, beliefs and values and can challenge the decision-maker on behalf of the person lacking capacity if necessary.

  • Advance decisions 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.

The Act introduces a new criminal offence of ill treatment or neglect of a person who lacks capacity.

What is mental capacity?

The Mental Capacity Act (2005) provides “a legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make particular decisions for themselves”

Mental capacity is the ability to make a decision.

The definition of lack of mental capacity, according to the Code of Practice, is “a person lacks capacity in relation to a matter if at the material time he/she is unable to make a decision for him/her self, in relation to the matter because of an impairment of, or a disturbance of, in the functioning of, the mind or brain”.

This means that a person lacks capacity if:

  • They have an impairment or disturbance( for example a disability, condition or trauma) that affects the way their mind or brain works,

and

  • The impairment or disturbance means that they are unable to make a specific decision at the time that it needs to be made

It is noted that impairment or disturbance does not have to be permanent in nature for the Mental Capacity Act (2005) to be applicable.

Who does the Act apply to?

The Mental Capacity Act (2005) applies to all people aged 16 years and over, in England and Wales, who for whatever reason are unable at a specific time to make a decision affecting such issues as their health, lifestyle and /or well being.

When might someone lack capacity?

There are many circumstances when an individual may lack capacity to make decisions for them. Such circumstances could be:

  • When the person is under the influence of drugs or alcohol.

  • If the person has had a head injury affecting levels of consciousness e.g. concussion.

  • When the person has a condition associated with some forms of mental illness.

  • When the person shows signs of cognitive impairment / memory loss.

  • If the person is delirious.

Please note that this list is not exhaustive and that all individuals and situations must be judged on a case-by-case basis

When should capacity be assessed?

The Mental Capacity Act (2005) identifies that there are a number of instances when it is appropriate to question, or assess, a person’s mental capacity to make a specific decision. This could be when:

  • The person’s behaviour or circumstances cause doubt as to whether they have the capacity to make a decision.

  • Someone else says that they are concerned about a person’s capacity.

or

  • The person has been previously diagnosed with an impairment or disturbance which affects the way their mind or brain works and it has already been shown that they lack capacity to make other decisions in their life

Who makes the mental capacity assessment?

The person who assesses an individual’s capacity to make a decision will usually be the person who is directly concerned with the individual’s case at the time that the decision needs to be made. This is usually a healthcare or social care professional.

Core principles

Section 1 of the Act sets out the five 'statutory principles' - the values that underpin the legal requirements in the Act. The Act is intended to be enabling and supportive of people who lack capacity to make particular decisions, but also to maximise their ability to make decisions, or to participate in decision making, as far as they are able to do so.

Following the principles and applying them to the Act's framework for decision making will help to ensure not only that appropriate action is taken in individual cases, but also to point the way to solutions in difficult or uncertain situations.

The five core principles are:

  • A person is assumed to have capacity. A lack of capacity has to be clearly determined.

  • No-one should be treated as unable to make a decision unless all practicable (reasonable) steps to help them have been exhausted and shown not to work.

  • A person can make an unwise decision. This does not necessarily mean they lack capacity.

  • If it is determined that a person lacks capacity then any decision taken on their behalf must be in their best interests.

  • Any decision taken on behalf of a person who lacks capacity must take into account their rights and freedom of action. Any decision should show that the least restrictive option for intervention is achieved.

Deprivation of Liberty Safeguards

The Deprivation of Liberty Safeguards (DOLS) provide protection for people who are in hospitals or care homes and are deprived of their liberty for the purpose of providing treatment or care, but lack capacity to consent to these arrangements; these could include people with dementia and those with severe learning disability.

:: more on deprivation of liberty safeguards

Contact Details

Dudley Adult Social Care: 01384 815822

Dudley - Walsall Mental Health Trust: 01384 360135

Dudley Community Mental Health Teams:

Sedgley: 01902 575921

Dudley: 01384 813880

Brierley Hill: 01384 366785

Stourbridge: 01384 366550

Halesowen: 0121 585 5506

External Links