The Mental Capacity Act (MCA) 2005

What is the Mental Capacity Act 2005?

The Mental Capacity Act 2005 is a vitally important piece of legislation that applies within England and Wales and makes a real difference to the lives of people who may lack mental capacity. It empowers people to make decisions for themselves wherever possible, and protects people who lack capacity, by providing a flexible framework that places them at the very heart of the decision making process. It places a strong emphasis on supporting and enabling the individual to make his/her own decisions. If they are unable to do this it emphasises that they should be involved in the decision making process as far as possible.

What is the scope of the Act?

The Mental Capacity Act 2005, covering England and Wales for people aged 16 years or over, provides a statutory framework for people who lack capacity to make decisions for themselves or have capacity and want to make preparations for a time when they may lack capacity in the future. The Act covers a wide range of decisions for example, supporting a person lacking capacity with their activities of daily living, supporting a person lacking capacity to manage their property and finances, supporting a person lacking capacity with serious medical treatment decisions.

What has the Mental Capacity Act 2005 introduced?

  • There must always be the presumption that a person has capacity to make decisions for themselves.
  • A single clear test for assessing whether a person lacks capacity to make a particular decision.
  • A check list of key factors to consider and help determine what is in the ‘best interests’ of a person lacking capacity.
  • Several ways that people can influence what happens to them if they are unable to make particular decisions in the future, including advance decisions to refuse medical treatment, statements of wishes and feelings, and creating a Lasting Power of Attorney.
  • An Independent Mental Capacity Advocate (IMCA) service which will only have to be involved in specific circumstances where there is no one appropriate who can be consulted in the decision making process..
  • A criminal offense of ill-treatment or wilful neglect of people who lack capacity.
  • Safeguards for undertaking research involving people who lack capacity.
  • A Court of Protection and a public official (the Public Guardian) who are supported by the Office of the Public Guardian (OPG).

In addition the Act is supported by a ‘Code of Practice‘. The Code of Practice has statutory force and provides guidance to anyone who is working with or caring for adults who may lack capacity to make decisions. It describes their responsibilities when acting or making decisions on behalf of individuals who lack the capacity to act or make these decisions for themselves. In particular The Code of Practice focuses on those who have a duty of care to someone who lacks capacity to agree to the care or treatment being provided.

What does lack of capacity mean?

Whenever the term ‘a person lacks capacity’ is used, it means a person who lacks capacity to make a particular decision or take a particular action for themselves, at the time the decision or action needs to be taken.

For example:

  • You may have the capacity to make everyday decisions, but not to make larger, more complex decisions.
  • You may have the capacity to make decisions one day but not the next.
  • Your capacity to make decisions might improve or get worse over time.
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