- The Mental Capacity Act 2005 comes into force in two stages: 1st of April
2007 Independent Mental Capacity Advocate, criminal offence, sections 1-4,
Code of Practice; 1st October all other parts of the Act e.g. Power of Attorney,
Court of Protection, Public Guardian, Advance Decisions etc.
- This Act provides a legal framework for acting and making decisions on
behalf of people aged 16 and over who lack the mental capacity to do
these acts or make these decisions for themselves and replaces
existing common law governing the treatment of people without
capacity. The Act covers a range of choices from day-to day decisions
such as what to wear or eat, through to serious decisions about where to
live, having medical treatment or what to do with a person’s finances
and property.
- Everyone working with and/or caring for people who lack capacity must
comply with the Act.
- This Act is supported by the ‘Mental Capacity Act 2005 Code of
Practice’ and doctors, nurses, social workers and others working in a
professional or any paid role are under a legal duty ‘to have regard’ to
this Code of Practice. You must be prepared to give reasons to explain
non-compliance with this Code and should record these reasons at the
same time as you make the decision not to follow the Code. Find the
Code at: http://www.dca.gov.uk/menincap/legis.htm#codeofpractice
- Five principles are set out in section 1 of the Act that all decisions and
actions carried out under this Act must be tested against. You must know
these principles and measure your decisions and actions against
them as failure to take them into account could be cited in legal
proceedings as evidence of unlawful conduct.
- The Act gives a definition of a person who lacks capacity (s. 2) and sets
out the test for determining whether a person is unable to make a
particular decision and therefore lacks capacity (s.3). If you have doubts
about a person’s capacity and are contemplating making a decision on
their behalf you must know these sections of the Act, apply them and
fully record both your decision and the reasoning behind your decision
in the relevant clinical and practice record.
- If you are making a decision or carrying out an act for a person without
capacity you must consider the checklist of factors set out in section 4 to
assess whether the act or decision is in the ‘best interests’ of the person
without capacity. As all such acts done or decisions made must be in the
‘best interests’ of the person without capacity a full record of the ‘best
interests’ assessment must be made in the relevant clinical and practice
record.
- The Act introduces designated decision-makers who can make
decisions, including welfare and treatment choices, on behalf of a person
without capacity i.e. a person with a Lasting Power of Attorney (s.9)
and a Court appointed Deputy (s. 16). It also creates the role of
Independent Mental Capacity Advocate (s. 35) who is someone
appointed to support a person who lacks capacity and has no one to
speak for them e.g. relatives. You must understand the legal role that
such people have in treatment decisions, know when it is appropriate to
involve them, how to involve them, how much access to confidential
information they must be allowed and record their involvement in the
relevant clinical and practice record.
- The Act gives statutory force to advance decisions to refuse treatment
that allow a person to make a decision in advance to refuse specified
treatment if they lose capacity in the future. You must be aware when an
advance decision is valid and applicable, follow it and record the
existence of an advance decision in the relevant clinical and practice
record.
- The Act defines ‘restraint’ and sets out guidance on when restraint is
lawfully permitted (s. 6). This is one of several areas where this statute
may overlap with the provisions of the Mental Health Act 1983. You
need to know about all of them!
- The Act creates 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 a fine, a term of imprisonment not exceeding five years or
both.
- You can get more information from:
http://www.oxfordshire.gov.uk/links/public/mentalcapacity (general
public)
http://www.oxfordshire.gov.uk/links/public/mentalcapacityinfo (for
professionals outside Oxfordshire County Council)
http://intranet.oxfordshire.gov.uk/links/intranet/mentalcapacityact (for
Oxfordshire County Council staff)
Rachel Griffiths, Mental Capacity Act Lead for Oxfordshire, email:
rachel.griffiths@oxfordshire.gov.uk
Look out for briefing sessions!