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Sunday, 29 November 2009

The Mental Capacity Act

The Mental Capacity Act came into force in October 2007. It protects people who cannot make decisions for themselves due to a learning disability or a mental health condition, or for any other reason. It provides clear guidelines for carers and professionals about who can take decisions in which situations.

The capacity to make decisions

The Act states that everyone should be treated as able to make their own decisions until it is shown that they are not. It also aims to enable people to make their own decisions for as long as they are capable of doing so.

A person's capacity to make a decision will be established at the time that a decision needs to be made. A lack of capacity could be because of a severe learning disability, dementia, mental health problems, a brain injury, a stroke or unconsciousness due to an anaesthetic or a sudden accident.

The Act also makes it a criminal offence to neglect or ill-treat a person who lacks capacity.

When someone is no longer able to decide

The Act intends to protect people who lose the capacity to make their own decisions. Specifically, it:

  • allows the person, while they are able to do so, to appoint someone - for example a trusted relative or friend - to make decisions on their behalf once they lose the ability to do so themselves. This includes decisions on the person's health and personal welfare. Previously, the law only covered financial matters.
  • provides a checklist for decision makers. This ensures that decisions are in the best interests of the person on whose behalf they are made.
  • introduces a Code of Practice for people such as healthcare workers who support people who have lost the capacity to make their own decisions.

People with no one to act for them will also be able to leave instructions for their care under the new provisions.

You can read more about the Act on the website of the Office of the Public Guardian.

The Office of the Public Guardian

The Office of the Public Guardian protects people who lack the mental capacity to make decisions for themselves.

It does this through regulating and supervising court-appointed deputies, and by registering Lasting Powers of Attorney and Enduring Powers of Attorney.

If there are suspicions that an attorney or deputy might not be acting in the best interests of the person they represent, the Office of the Public Guardian will work with other organisations to ensure that any allegations of abuse are fully investigated and acted on.

The Office of the Public Guardian also provides information on mental capacity to the public and can provide contacts with other organisations working in the field of mental capacity.

More information about the Office of the Public Guardian, the Court of Protection and Lasting Power of Attorney can be found on the Office of the Public Guardian website.

The Court of Protection

The Court of Protection deals with all issues relating to people who lack capacity to make specific decisions, for example concerning financial or serious healthcare matters. It will look at cases where the person's carer and healthcare worker or social worker disagree on what are the person's best interests.

The Court of Protection has specially trained judges to deal with decisions relating to personal welfare, as well as property and financial affairs.

Lasting Power of Attorney

Lasting Power of Attorney replaces Enduring Power of Attorney. If you have an existing Enduring Power of Attorney, it can still be used but you cannot make any changes to it or make a new one.

A Lasting Power of Attorney is a legal document that you make using a special form. It allows you to choose someone now that you trust to make decisions on your behalf at a time in the future in case you no longer can or want to make those decisions yourself.

The new Lasting Power of Attorney covers personal welfare as well as finance and property decisions. It can only be used after it has been registered with the Office of the Public Guardian. This will ensure that any decisions made on behalf of people lacking capacity are in their best interests.

Independent Mental Capacity Advocate

The Mental Capacity Act set up the Independent Mental Capacity Advocate service. An Independent Mental Capacity Advocate is someone appointed to support a person who lacks capacity but has no one to speak for them, such as family or friends.

They will only become involved to help with decisions about serious medical treatment or a change in the person's accommodation where it is provided by the NHS or a local authority.

Three Stories - a film about the Mental Capacity Act

'Three Stories' is a powerful documentary about three real-life stories. It shows how the Mental Capacity Act empowers and protects people who lack capacity to make some decisions, or who find it difficult to communicate some of their decisions.

The 15-minute-long film is available in three formats:

  • Windows Media video - the WMV file
  • QuickTime - the MOV file
  • Real Player video - the RMVB file

Additional links

Health advice

Visit NHS Choices for health information and local health services in England

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