Mental Capacity Act

In 2007 the Mental Capacity Act (MCA) 2005 became law. The Act states everyone aged 16 and over must be treated as able to make their own decisions until it is shown that they are not. 'Mental capacity' is the term used for a person's ability to make decisions.

Some people may have difficulty making decisions because of:

  • a health condition that affects their thinking, or
  • a condition they were born with, such as a learning disability.

The Mental Capacity Act 2005 puts the steps professionals and carers must take if they think someone needs a decision taking for them, but most importantly it protects the right of people whose capacity may be questioned to make their own decisions as much as possible. It also allows people to plan ahead for a time when they may lose capacity.

What does the Act do?

The Mental Capacity Act 2005 sets out five key principles, which underpin the legislation and apply to all.

  1. A presumption of capacity - it must be assumed a person has capacity to make decisions unless it is proved otherwise.
  2. The right for individuals to be supported to make their own decisions - before anyone concludes that they cannot.
  3. Individuals retain the right to make what may appear to be unwise decisions.
  4. Any decision made or action taken on behalf of people without capacity must be in their best interests.
  5. Anything done for or on behalf of people without capacity should be the least restrictive of their rights and freedoms.

The Act also introduces new roles and responsibilities.

Independent Mental Capacity Advocates (IMCA) (POhWER)

The aim of Independent Mental Capacity Advocates (IMCA) service is to provide independent safeguards for people who:

  • lack capacity to make certain important decisions and,
  • have no one else to support them or represent them or be consulted, at the time when such decisions need to be made.

You can make a referral to Advocacy in Slough.

Power of Attorneys for finance and health and welfare decisions

A power of attorney is a legal document that allows someone to give another person authority to make a decision on their behalf. Under a power of attorney, the chosen person (the attorney or donee) can make decisions that are as valid as the one made by the person (donor). This can now be about both finance and health & welfare decisions. These decisions are separate decisions.

Court of Protection

protection has the powers to decide whether a person has capacity to make a particular decision for themselves. And if not to then:

  • make decisions or orders on financial or welfare matters affecting those people or
  • appoint deputies to make decisions for people lacking capacity to make those decisions.

The Court of Protection also decides if a Lasting Powers of Attorney (LPA) or Enduring Power of Attorney (EPA) is valid and remove deputies or attorneys who fail to carry out their duties appropriately.

New Offence – Ill treatment or wilful neglect

The Mental Capacity Act creates the criminal offences of ill-treatment or wilful neglect under Section 44 based on existing principles (under Section 127 (1) of the Mental Health Act 1983). The offences can be committed by anyone responsible for that person’s care and are punishable 'either way' in the Magistrates' or Crown Court:

  • on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both
  • on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine or both.

The elements are the offender:

  • has the care of the person in question OR is the donee of a power of attorney OR is a court-appointed deputy
  • reasonably believes the person lacks capacity (or they do lack capacity)
  • ill-treats or wilfully neglects the person.

It can be expected that ill-treatment will require more than trivial ill-treatment, and will cover both deliberate acts of ill-treatment and also those acts which could be considered to be reckless.

Wilful neglect will require a serious departure from the required standards of treatment and usually requires a person has deliberately failed to carry out an act that they were aware they were under a duty to perform.
In consequence, defences could be raised to the effect that the elements of the offence set out in Section 44 are not made out in the following terms:

  • there is no Section 44 relationship (no care/power of attorney/court-appointed role)
  • the person does not lack capacity and/or there was no reasonable belief in such a lack of capacity
  • there was no ill-treatment or wilful neglect.

Code of Practice

The Act introduced a Code of Practice, which was written by the Department of Health. This sets out how professionals, carers and others should work with people who are thought to lack capacity. Carers and staff acting for someone who is thought to lack capacity must always follow this guidance.

Useful resources

Training sites