The Mental Capacity Act 2005
The Mental Capacity Act 2005 came into force in England and Wales in 2007. The Act aims to empower and protect people who may not be able to make some decisions for themselves.
It also enables people to plan ahead in case they are unable to make important decisions for themselves in the future. Most of the Act came into effect in October 2007, although some parts of it became law in April 2007.
Who does it apply to?
The Act applies to anyone aged 16 or over in England and Wales. It protects people with mental health problems as well as people with dementia, learning disabilities, or stroke or brain injuries. These people may find it difficult to make decisions some or all of the time. In addition, anyone can use the Act to plan ahead in case they are unable to make decisions in the future.
The Act applies to situations where people may be unable to make a particular decision at a particular time. For someone with a mental health problem, this will depend on how they are feeling or the impact of their condition on them at that time. In some cases, they may be able to make the decision at a later date.
The Mental Capacity Act sets out in law what happens when people are unable to make a particular decision.
What is mental capacity?
If you have 'mental capacity' you are able to make a particular decision for yourself. Mental capacity is not about someones capacity to make a range of decisions. The legal definition says that someone who lacks capacity cannot, due to an illness or disability such as a mental health problem, dementia or a learning disability, do the following:
- understand information given to them to make a particular decision
- retain that information long enough to be able to make the decision
- use or weigh up the information to make the decision
- communicate their decision
The Mental Capacity Act can apply to all sorts of decision such as:
- major decisions such as decisions about personal finance, social care or medical treatment
- everyday decisions such as decisions about what to wear or eat
The law works on the principle that everyone is assumed to have capacity to make decisions for themselves if they are given enough information, support and time. It protects your right to make your own decisions and to be involved in any decisions that affect you. Even if your decision appears unwise or eccentric, the Act makes clear that you should not be treated as lacking capacity for that reason.
Who decides if I lack mental capacity to make a particular decision?
The Mental Capacity Act says that you should have as much help as possible so that you can make your own decisions. It explains how your mental capacity should be assessed to see whether you can make a particular decision at a particular time.
Anyone can assess capacity. For everyday decisions, a relative or carer is the person most likely to need to assess whether you are able to make a particular decision. Professionals are more likely to have to formally assess capacity when decisions are more complex. If the decision is about treatment, a doctor may assess capacity; if it is a legal decision, a solicitor may assess capacity.
All medical and social care professionals and paid carers, as well as people performing certain roles and functions created by the Mental Capacity Act, must 'have regard to' the Code of Practice that accompanies the Act when they are supporting someone that lacks capacity. This involves paying attention to the Code and being able to demonstrate familiarity with its guidance. If they do not follow the Code, they should be able to give convincing reasons why they are not.
How could the Act affect me?
If you are unable to make some decisions and you have not made plans about this in advance, the Mental Capacity Act allows someone else to decide what should happen.
However, some types of decision can never be made by another person on your behalf, whether or not you lack mental capacity. These include decisions about marriage or civil partnership, divorce, sexual relationships, adoption and voting.
In contrast, decisions regarding compulsory detention and treatment for a mental disorder can be made without consent, whether or not someone has capacity, under the Mental Health Act 1983. The Mental Capacity Act therefore does not cover these decisions.
The Act explains:
- that being unable to make a complex decision yourself does not mean you cannot make more straightforward decisions
- that being unable to make a decision at a certain time does not necessarily mean that you will not be able to make it at a later time or date if the decision can wait
- that someone cannot decide that you lack capacity, or make assumptions about what is in your best interests, merely on the basis of your age, appearance, condition or behaviour
- that if someone has to make a decision on your behalf, they must still involve you as much as possible
- that someone making a decision on your behalf must act in your best interests - the Act gives a checklist of factors which they must consider when working out what is in your best interests
- a decision made on your behalf must be made in a way that is least restrictive of your basic rights and freedoms, as long as it is still in your best interests
- how care or treatment can be carried out if you lack capacity, providing it is in your best interests - including safeguards and limitations
- additional safeguards where decisions involve withholding or withdrawing life-sustaining treatment for someone who lacks capacity to make these decisions
- how an Independent Mental Capacity Advocate (IMCA) can represent you if you are unable to make important decisions and there is no one else who can support you or represent your views. Find out more about the IMCA service.
An advocate is an independent person who helps to make sure your wishes are expressed and your voice is heard. An IMCA has a particular duty to help professionals work out what is in your best interests.
You can search for organisations that provide advocacy on the Action for Advocacy website.
How can the Act help me to plan ahead?
The Act also explains how anyone can plan ahead for a time when they may lack mental capacity by using a Lasting Power of Attorney (LPA) to appoint someone to make decisions on their behalf. This includes decisions about property and financial affairs as well as health and personal welfare decisions. LPAs replace the existing Enduring Powers of Attorney (EPAs), although EPAs made before October 2007 can still be used.
The Act also enables you to make an 'advance decision to refuse treatment' if there is a particular treatment you would not want if you ever lack capacity to refuse it. Advance decisions are legally binding and must be followed by doctors, with the exception of compulsory detention or treatment for a mental disorder under the Mental Health Act.
You can also make a 'written statement' that could include particular things or people you would want to be considered should you ever lack capacity - the Act says that a written statement made by you should be taken into account when deciding what is in your best interests.
What other safeguards does the Act introduce?
The Act has created legal safeguards designed to stop fraud and abuse:
- The Court of Protection will be able to make final decisions about whether someone lacks capacity, it can make important decisions on their behalf and it can appoint deputies to make decisions on someones behalf
- The Office of the Public Guardian oversees Lasting Power of Attorneys and Enduring Power of Attorneys, supervises deputies, supports the Court of Protection and gives guidance on the Mental Capacity Act to the general public
- A criminal offence of ill treatment or wilful neglect of a person who lacks capacity.
- New procedures and safeguards for involving people in research when they lack the capacity to consent.
Where can I find out more?
- people who may be unable to make some decisions for themselves who wish to plan ahead for the future
- family, friends and unpaid carers people who work in health and social care
- advice workers
- explaining about the Act in Easier Read
- explaining the Independent Mental Capacity Advocate (IMCA) service.
The Department of Health website has more information about research, Independent Mental Capacity Advocates (IMCAs), and changes to the Mental Capacity Act that were due to come into force in April 2009.
The Social Care Institute for Excellence (SCIE) website has free training materials available for anyone working in health and social care which help explain how the Act should be used.
The Office of the Public Guardian is the first point of call for enquiries. For advice and information, call their Customer Services Unit on 0845 330 2900.
What is the law in Scotland?
The Adults with Incapacity (Scotland) Act 2000 sets out in law a range of options to help people aged 16 or over who lack the capacity to make some or all decisions for themselves. It allows other people to make decisions on their behalf.
The Act also enables anyone to make arrangements for another person or people to make decisions and manage your affairs on your behalf, in the event of losing capacity in the future.
The Office of the Public Guardian in Scotland is responsible for supervising the people appointed under the Act to manage the affairs of adults who lack the capacity to do so themselves. The Office also provides advice and guidance to the general public.
You can find out more about the Act from the Scottish Government website.
What is the law in Northern Ireland?
There is currently no equivalent law on mental capacity in Northern Ireland.
The Bamford Review of Mental Health and Learning Disability is looking at how current law affects people with mental health needs or a learning disability in Northern Ireland.