The Mental Capacity Act

The Mental Capacity Act 2005 is an Act of Parliament which came into full effect in October 2007. It was brought in to help those people who need to make decisions about their health and welfare, and protect those who may lack the mental capacity to make particular decisions at particular periods of their lives for themselves.

The Act incorporates a Code of Practice which informs all paid and voluntary staff working in the field of Health and Social Care, with guidance to ensure they work within the requirements of the Mental Capacity Act. Families, friends and other carers will also benefit from the advice provided in the Code about how to treat people who do not have mental capacity.

More information on the Act is included in the following sections:

What is the Mental Capacity Act?

The Act has been put in place so that people over the age of 16 can get more help to make their own decisions about the services they receive.

It is also for those people who do not have the capacity to make a decision. They will be provided with more protection, ensuring that decisions are made on their behalf, in line with their best interests, wishes, desires and cultural/religious values.

The Act will help people who have:

  • a psychiatric illness (dementia)
  • a learning disability
  • a mental health problem
  • a brain injury or stroke
  • confusion, drowsiness or unconsciousness because of an illness or the treatment for it.
  • been affected by drugs, alcohol or some other substance misuse.

Guidance is provided on:

  • What needs to be done to help someone make their own decisions
  • How to work out whether a person can make their own decisions
  • What to do if someone cannot make their own decisions

The Act brought in the following:

The Independent Mental Capacity Advocate (IMCA)

This is an independent service provided in County Durham and Darlington by an organisation called "Skills for People". The IMCA will become involved when:

  • a person who lacks capacity needs to go into long term care of 8 weeks or more
  • a person who lacks capacity needs to go into hospital for more than 28 days
  • a move to different accommodation (8 weeks or more) is being considered.

They will also need to be appointed when serious medical treatment is proposed where there is a balance between risks and benefits.

In these cases, the IMCA will be appointed if the person for whom the decision is being made is without friends, family or supporters who can help with the decision. The IMCA may also need to be involved in certain Adult Protection cases, whether or not the person has family, friends or supporters, or where there is a Care Review related to accommodation.

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A new criminal offence of ill-treatment or wilful neglect

The penalty for such an offence is a fine and/or a sentence of imprisonment of up to five years. Referrals related to this are likely to be processed using Adult Protection procedures. You can view more information on Safeguarding Adults or contact the Darlington Adult Protection Coordinator - Telephone 01325 346728.

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Assessments of a person's capacity

People who work with those who lack capacity are required to carry out an assessment of capacity and have to judge what actions are in that person's best interests. The Act explains what is meant by capacity and how to test capacity. It also provides a checklist for determining what is meant by "best interests". The Act also protects those people who work with a person who lacks capacity, who have to make a decision on behalf of that person. Provided the principles of the Act are met, no civil or criminal action can be taken against a person who makes decisions on another person's behalf.

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The Court of Protection

The Court has been set up to become involved in helping to make decisions where the person lacks capacity to make a decision and where no prior arrangements exist to make a certain decision on behalf of a person who lacks capacity and/or the professionals, family or friends are unable to agree on what would be in the person's best interest. If the advocate cannot get agree on a course of action, then the court of protection will have the power to step in to help make that decision on what would be in the person's best interests.

A Court of Protection may make someone a Deputy. This Deputy can make certain decisions in a person's best interest if the person cannot make decisions. This will only happen if the Court decides it is in the person's best interests to have a Deputy and that person does not have a lasting power of attorney.

If there is just one decision that the Court needs to make on behalf of an individual, then a Deputy will not be needed. The Judge will make this decision instead. This is called a single order of the court.

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The Office of the Public Guardian

There is a new government office that will carry out the following work:

  • Administer the applications and paperwork for Court Deputies on behalf of the Court.
  • Look after the lasting Power of Attorney records
  • Work with social care and the Police in cases where there is concern that a person that lacks capacity has been abused.

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Living Wills

The Act also brings in the ability to have an advance refusal of treatment (known as living wills) and other actions to take if you want to plan ahead for the future.

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Lasting Powers of Attorney

This is a legal document where an individual can say in writing who they want to make certain decisions for them if at some point in the future they lack capacity to make their own decisions. This legal document can only be completed if the person it is about understands what it means at the time of signing it. The person or persons who are named to act on behalf of the person who lacks capacity must also be capable of acting in the best interests of the person lacking mental capacity. Decisions covered can include those relating to health, welfare, property and money.

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Information Booklets

  1. Making Decisions - About your Health, Welfare and Finance (PDF document, 577kb)
  2. Making Decisions - A Guide for family, friends and other unpaid carers (PDF document, 548kb)
  3. Making Decisions - A Guide for people who work in Health and Social Care (PDF document, 472kb)
  4. Making Decisions - A Guide for Advice Workers (PDF document, 425kb)
  5. Guidelines for Deprivation of Liberty (PDF document)

For more information on the Mental Capacity Act, Lasting Powers of Attorney, how to make an application to the Court of Protection or to register Enduring Power of Attorney, visit the Office of the Public Guardian website [external link]

Frequently Asked Questions (Rich text document)