Mental Capacity Act 2005
Knowledge of the Mental Capacity Act and MCA Code of Practice are vital for everyone working with and/or caring for patients aged 16 or over who lack, or have reduced, mental capacity.
The Act is underpinned by a set of five key principles (Section 1):
i. A presumption of capacity – every patient aged 16 or over has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise;
ii. The right for individuals to be supported to make their own decisions – patients must be given all appropriate help before anyone concludes that they cannot make their own decisions;
iii. If they have capacity, patients retain the right to make what might be seen as eccentric or unwise decisions;
iv. Best interests – anything done for or on behalf of patients without capacity must be in their best interests; and
v. Least restrictive intervention – anything done for or on behalf of a patient without capacity should be the least restrictive of their basic rights and freedoms.
The Act provides a legal framework for making decisions on behalf of patients aged 16 or over who lack the mental capacity to act or make decisions for themselves. It enshrines in statute current best practice and common law principles concerning patients who lack mental capacity and those health and social care professionals who have to take decisions on their patient’s/client’s behalf.
The Act is supported by the Mental Capacity Act 2005 Code of Practice. All doctors, nurses, social workers and other healthcare professionals are under a legal duty ‘to have regard’ to this Code of Practice.
The Act also creates two new public bodies to support the statutory framework, both of which will be designed around the needs of those who lack capacity:
A new Court of Protection – The new Court will have jurisdiction relating to the whole Act and will be the final arbiter for capacity matters. It will have its own procedures and nominated judges.
A new Public Guardian – The Public Guardian and his/her staff will be the registering authority for Lasting Power of Attorneys and deputies. They will supervise deputies appointed by the Court and provide information to help the Court make decisions.
The Act also includes three further key provisions to protect vulnerable people:
Independent Mental Capacity Advocate (IMCA) – An IMCA is someone appointed to support a person who lacks capacity but has no next of kin or friend to speak for them. The IMCA makes representations about the person’s wishes, feelings, beliefs and values, at the same time as bringing to the attention of the decision-maker all factors that are relevant to the decision. The IMCA can challenge the decision-maker on behalf of the person lacking capacity if necessary.
Advance decisions to refuse treatment – people may make a decision in advance to refuse treatment if they should lose capacity in the future. It is made clear in the Act that an advance decision will have no application to any treatment which a doctor considers necessary to sustain life unless strict formalities have been complied with. These formalities are that the decision must be in writing, signed and witnessed. In addition, there must be an express statement that the decision stands 'even if life is at risk'. The new Advance Decision form is amongst the material on the intranet and the Trust’s healthcare records department will ensure that a copy of a patient’s Advance Decision will be in their notes.
A criminal offence – The Act introduces 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 imprisonment for a term of up to five years.
You can also read more about the Act on the Ministry of Justice |website or the Department of Health |website.
Or contact:
Social and Community Services
Yarnton House
Rutten Lane, Yarnton
Oxford OX5 1LP
Tel: 01865 854508
Fax: 01865 854484
Email: mentalcapacityact@oxfordshire.gov.uk|