The Mental Capacity Act
What is Mental Capacity?
Why do I need to know about the Mental Capacity Act?
Making decisions about your health, welfare or finance. Who decides when you can’t?
Information for family, friends and other unpaid carers of Service Users
The Independent Mental Capacity Advocacy (IMCA) Service
Mental Capacity Act Publications
Useful Links
About the Mental Capacity Act 2005
The Mental Capacity Act 2005, which came into force on 1 October 2007, will affect anyone who is unable to make some or all decisions.
The inability to make a decision could be because of a learning disability, mental health problems, brain injury, dementia, alcohol or drug misuse, side effects of medical treatment or any other illness or disability.
The new law will help and support you if:
- You currently find it difficult to make decisions sometimes or all of the time.
- You want to plan ahead in case you are unable to make decisions in the future.
The Act is underpinned by five key principles:
- A presumption of capacity - every adult 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.
- Individuals being supported to make their own decisions - a person must be given all practicable help before anyone treats them as not being able to make their own decisions.
- Unwise decisions - just because an individual makes what might seem as an unwise, they should not be treated as lacking capacity to make that decision.
- Best interests - an act done or decision made under the Act, for or on behalf of a person who lacks capacity, must be done in their best interests.
- Least restrictive option - anything done for or on behalf of a person who lacks capacity, should be the least restrictive of their basic rights and freedoms.
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What is Mental Capacity?
Mental capacity is the ability to make decisions or take actions, about things ranging from what to eat or wear, to decisions that could have financial or legal consequences. You have mental capacity if you are able to make decisions for yourself. The new law says that someone who lacks capacity cannot do one or more of the following four things:- Understand information given to them
- Retain that information long enough to be able to make a decision
- Weigh up the information available to make a decision
- Communicate their decision. This could be by an means such as talking, using sign language or even muscle movements – blinking an eye or squeezing a hand
We hope this page and the useful publications and links will provide you with information on the following:
- How the Mental Capacity Act could affect you.
- How you can plan ahead now in case you cannot make your own decisions in the future.
- How you will be protected if you are unable to make a decision either now or anytime in the future.
- On what basis other people can take actions on your behalf if you cannot do so .
- Where to go for help and advice.
More detailed guidance can be found in the Code of Practice which accompanies the Act. For details of how to download or order a copy of the Code of Practice please see the useful publications section.
Why Do I Need to Know About the Mental Capacity Act?
The Mental Capacity Act will be relevant to anyone who has a relative or friend who may lack capacity.- It will clarify the process for caring for people who may lack capacity.
- It will clarify how decisions should be made for your relative or friend if they are unable to make those decisions for themselves.
- It sets out when you should be consulted about decisions made on behalf of your relative or friend.
- It sets out how your relative or friend is protected when others are making decisions on their behalf.
The Act applies whenever decisions are being made on behalf of a person who lacks capacity to make a particular decision for themselves. This includes any assessment of their need for treatment, services or support. The Act will provide a clear legal framework for dealing with mental capacity issues. It includes some new measures and safeguards and incorporates existing best practice.
The Act will be accompanied by a Code of Practice which provides guidance as to how it should work on a day-to-day basis. The Code explains in more detail what the key features of the new law are and some of the practical steps that people using and interpreting the new law will need to take into consideration.
Certain people have a duty to have regard to the Code, including professionals, attorneys, deputies, paid carers and researchers.
Making Decisions About Your Health, Welfare or Finance. Who Decides When You Can’t?
Key Points:
- The new law protects your right to make your own decisions and to be involved in any decisions that affect you.
- There are a number of ways that you can plan ahead and set out in advance what you would like to happen should you be unable to make your own decision in the future.
- If you are unable to make your own decision about something that affects you and if you have not planned ahead, other people will make decisions or take actions on your behalf in your best interests.
- For most day-to-day actions or decisions, your family or carer will assess your capacity to make the particular decision. For more complex decisions, a more formal assessment may require the involvement of different people such as a doctor or other professionals.
- When a decision is being made on your behalf, it must be in your best interests and the people who care for you or your friends and family must be consulted where practical and appropriate and their views must be taken into account.
- If you do not have capacity to make a particular decision and you do not have any friends or family, for certain serious decisions such as serious medical treatment or moving into long-term care or a hospital, you will get extra support from an Independent Mental Capacity Advocate (IMCA).
- The Act provides a clear legal framework for dealing with mental capacity issues and will help to ensure that fraud and abuse do not take place.
The Department for Constitutional Affairs have produced a booklet, 'Making decisions about your health, welfare and finances...Who decides when you can't?', which explains these key points in more detail. This booklet is available to download or order, details of how to do this are in the Useful Publications section.
Information for Family, Friends and Other Unpaid Carers of Service Users
This information is for anyone who helps to care for someone over 16 who is unable to make some or all decisions.
The inability to make a decision could be because of a brain injury or stroke, dementia, learning disability, mental health problems, alcohol or drug misuse, the side effects of medical treatment or any other illness or disability.
The person you care for may lack capacity to make decisions about money, health and other matters. You may need to help them to make those decisions or you may have to take action or make decisions on their behalf.
The Mental Capacity Act sets out what should happen when someone lacks capacity to make decisions.
The booklet 'A guide for family, friends and other unpaid carers', available from Ministry of Justice - Info Booklet provides detailed information on the following:
- What the Act says about mental capacity.
- How to decide if a person lacks capacity to make a decision.
- How you can help a person plan in advance for what would happen if they lack capacity to make decisions in the future.
- What will happen if a person can’t make a particular decision.
- how you can help a person make their own decisions.
- On what basis you would take actions on behalf of a person who lacks capacity.
- The role of family and friends when professionals are involved.
- What to do if you think the Act is not being followed.
- How the Code of Practice for the Mental Capacity Act will help you.
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The Independent Mental Capacity Advocacy (IMCA) Service
IMCA is a new type of statutory advocacy introduced by the Mental Capacity Act 2005. The Act gives some people who lack capacity the right to receive support from an IMCA. In County Durham and Darlington IMCA services will be provided by Skills for People.Why have an IMCA Service?
In the past many people who lacked capacity to make decisions for themselves have not been listened to. IMCA's safeguard the rights of those with nobody else to speak for them.
The main benefits for the person who lacks capacity are:
- Having an independent person to review significant decisions being made.
- Having an advocate who is articulate and knowledgeable, not solely in relation to the Act but also about a person's rights, health and social care systems and community care law.
- Receiving support from a person who is skilled at helping people who have difficulties with communication to make their views known.
- Having an independent person who can support and represent them when serious decisions are being made and they have nobody else who can be consulted.
What are the duties of an IMCA?
The duties of an IMCA are to:
- Support the person who lacks capacity and represent their views and interests.
- Obtain and evaluate information about the person such as accessing health records, care plans etc.
- Ascertain the person's wishes, feelings, beliefs and values, wherever possible.
- Propose alternative courses of action.
- If necessary, obtain a futher medical opinion.
- Prepare a report for the person who instructed them.
What Does an IMCA do?
An IMCA safeguards the rights of people who:
- Are facing a decision about a long term care move or about serious medical treatment.
- Lack capacity to make a specified decision at the time it needs to be made.
- Have nobody else who is willing and able to represent them or be consulted in the process of working out their best interests, other than paid staff.
Regulations under the Act give local authorities and NHS bodies powers to involve IMCA's in other decisions concering:
- A care review.
- Adult protection procedures (even in situtations where there may be family or friends to consult).
IMCA's are independent and will generally work for advocacy providers who are not part of a local authority or the NHS.
Who is an IMCA for?
The IMCA service is for any person, aged 16 years or over, who has no-one able to support and represent them, and who lacks capacity to make certain serious decisions.
The information relating to the Independent Mental Capacity Advocacy Service has been reproduced under the terms of the Click-Use Licence. © Crown Copyright. For permission to reproduce this information visit the Office of Public Sector Information website.
You can order or download the 'Independent Mental Capacity Advocate (IMCA) Service' booklet from Ministry of Justice
Mental Capacity Act Useful Publications
A Summary of the Mental Capacity ActThe Mental Capacity Act Code of Practice
The Code of Practice provides advice and information on how the Act will work on a day to day basis for anyone who works with or cares for people who lack capacity.
To order a printed copy contact The Stationery Office:
Tel: 0870 6005522
Email: customerservices@tso.co.uk
Making decisions about your health, Information Leaflet
To order printed copies of the leaflet please contact the Ministry of Justice's publications orderline:
Tel: 023 80878038 or 023 80878036
Fax: 023 80528324
Email: reorder@inprintlitho.com
A selection of booklets have been produced by the Department of Constitutional Affairs to explain the Act and it's implications:
- Booklet 1 - Making decisions...about your health, welfare or finance. Who decides when you can’t?
- Booklet 2 - A guide for family, friends and other unpaid carers
- Booklet 3 - A guide for people who work in health and social care
- Booklet 4 - A guide for advice workers
- Booklet 5 - Easy Read version
- Booklet 6 - The Independent Mental Capacity Advocate (IMCA) Service
Tel: 023 80878038 or 023 80878036
Fax: 023 80528324
Email: reorder@inprintlitho.com
These booklets are also available in other formats on request.
