Mental Capacity Act

The Mental Capacity Act 2005 was brought in to help people who need to make decisions about their health and welfare, and protect those who may lack the mental capacity to make particular decisions.

The Act incorporates a code of Practice which informs all staff working in the field of Health and Social Care with guidance to make sure they work within the requirements of the 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.

The Act is for those people who do not have the capacity to make a decision. It has been put in place so that people over 16 can get help to make their own decisions about the services they receive. They will be provided with more protection, and it ensures that decisions are made on their behalf in line with their best interests, wishes, desires and values.

The Act helps people who have

  • A psychiatric illness (dementia)
  • A learning disability
  • A mental health issue
  • A brain injury or stroke
  • Confusion, drowsiness or unconsciousness because of an illness or treatment for it
  • Been affected by drugs, alcohol or some other substance misuse

The Act introduced

  • The Independent mental Capacity Advocate
  • A new criminal offence of ill treatment or wilful neglect
  • The Court of Protection
  • The Office of the Public Guardian
  • Living Wills
  • Lasting Power of Attorney

The law works on the principle that everyone is assumed to have capacity unless there is reason to believe an individual lacks capacity. 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 people who work with someone 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’s behalf.

Further information can be found in these leaflets

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].

Do I need to obtain permission from the service user to carry out a test of capacity?

It may be that the service user does not have the capacity to give or to refuse consent to be assessed. If the individual does not wish to co-operate with you to enable a capacity assessment to take place, then legal advice should be sought through our Legal Department. Where necessary the question of whether the service user lacks capacity in respect to the original question and therefore whether a decision needs to be made about this by an appropriate person on his/her behalf, can be decided by the Court of Protection.

With regard to the Data Protection Act, how much access will IMCA’s have to the case files of service users?

IMCA’s will be able to access information held about service users as part of their advocacy role. However, what they can access must relate to the work that they have been contracted to carry out, (what they will need to know to understand what is in the service user’s best interests in relation to the situation that needs to be resolved.)

If it is seen to be in a person’s “best interests” to receive a Direct Payment, can this be accessed to pay for the care of someone who lacks the capacity to consent to having one?

Someone who lacks capacity to consent to direct payments could access payments through a brokerage arrangement. These payments would be an indirect payment to a broker who would be acting as agent for the local authority. This arrangement is made possible through section 30 of the National Assistance Act 1948, which gives a local authority a power to engage a voluntary organization or to employ any other person for the purposes of section 29 of the Act (the gateway to services for adults with a disability). The consent of the service user is not required in this arrangement. As the agent, or broker, is arranging personal care for an incapacitated person in their own home, they are required by the Care Standards Act to register as a domiciliary care agency. This is often seen as the drawback of this type of arrangement.

Can a Lasting Power of Attorney who is registered to advise on the care and welfare decisions for a person who has lost capacity, use their powers to sign for and manage a Direct Payment on that person's behalf?

Yes, there is another way to make payments for care services available to someone who does not have capacity to consent to a direct payment. It is possible to make a payment under section 2 of the Local government act 2000, a so-called “well-being” payment. This is effectively a grant, not a direct payment, so the consent of the service user ids not required. The payment could be made to somebody who is lawfully an agent of the service user, or rather who is appointed to act on behalf of the service user. In practice, this would have to be a Receiver or the holder of a Short Order, or an Enduring Power of Attorney. As in this scenario, the agent is the agent of the service user, not the agent of the local authority, so registration as a domiciliary care agency is not triggered.

Should a Direct Payment be withdrawn when a service user, who has previously consented to receiving it, has subsequently lost capacity?

Where a service user who has previously consented to receiving a direct payment, but who has since lost capacity permanently, and as a result has lost the capability of managing the direct payment, then the direct payments should cease to be made to them. However, when the service user has only lost capacity temporarily and they have made an Enduring Power of Attorney or a Lasting Power of Attorney, then the attorney can assist in managing the payments for the service user during the temporary period of incapacity.

When do Lasting Powers of Attorney begin within the Act – and does this mean that Enduring Powers of Attorney will be converted to LPA’s?

Through the Act, Lasting Powers of Attorney are due to begin on 1st October 2007. Enduring powers of Attorney will continue as EPA’s and not be converted to LPA’s.

Who can act as a Court Deputy?

A court deputy is appointed by the Court of Protection. The court will consider any suitable applicant to carry out this role. For example, this could be a family member, a local authority or a solicitor. However, it would be unwise for an individual social worker/care co-ordinator to apply to be a court deputy for a service user. It would be better for the organisation employing the member of staff to apply.

Is there a cost to using the Court of Protection and the Public Guardian?

Fees will need to be paid to the Court of Protection for the administration of Receivership and Deputyship. Also, fees will apply for court cases that are heard in the Court of Protection such as those involving disputes about issues of capacity or welfare.

Should I share information about a service user in a case where they have lost the capacity to consent to it being shared?

Any decision to share or withhold confidential information must be made I lie with the provisions of the Data protection Act 1998, even if a person lacks the capacity to give or refuse consent to a piece of information being shared. Where appropriate you should seek advice from our Legal Department.

When I carry out a capacity test will I need to record that I have done this?

IT support systems are currently being adjusted so that where appropriate staff can record electronically when they have completed the mental capacity test. This would then support easy access to this information should a situation result in a challenge about the process used by a staff member in relation to the Mental Capacity Act. For similar reasons, where appropriate, it is good practice to record aspects of the mental capacity test on a service user’s case file.

What should I do if I am confused or worried about an aspect of implementing the Act?

Firstly, you may wish to discuss the matter with your manager. However, if after that you still have concerns, you should contact our legal department, who will be able to offer advice and support to enable good practice to be upheld.

Can an individual set up their own lasting Power of Attorney without the involvement of a solicitor?

It is likely that they can do this. In the same way that people currently access Enduring Power of Attorney templates online, they will also find LPA templates. However, there will still be a fee to register it with the Public Trust Office. Staff need to be careful not to offer advice as to the need to go to a solicitor or otherwise.