The Act's purpose is:
• To allow adults to make as many decisions as they can for themselves.
• To enable adults to make advance decisions about whether they would like future medical treatment.
• To allow adults to appoint, in advance of losing mental capacity, another person to make decisions about personal welfare or property on their behalf at a future date.
• To allow decisions concerning personal welfare or property and affairs to be made in the best interests of adults when they have not made any future plans and cannot make a decision at the time.
• To ensure an NHS body or local authority will appoint an independent mental capacity advocate to support someone who cannot make a decision about serious medical treatment, or about hospital, care home or residential accommodation, when there are no family or friends to be consulted.
• To provide protection against legal liability for carers who have honestly and reasonably sought to act in the person's best interests.
• To provide clarity and safeguards around research in relation to those who lack capacity.
About mental capacity
Under the Mental Capacity Act a person is presumed to make their own decisions "unless all practical steps to help him (or her) to make a decision have been taken without success".
Every person should be presumed to be able to make their own decisions.
You can only take a decision for someone else if all practical steps to help them to make a decision have been taken without success. Capacity isn't set at a blanket level - for example, someone might have the capacity to walk into a shop and buy a newspaper but not to go into an estate agent and purchase a property.
Incapacity is not based on the ability to make a wise or sensible decision.
How 'mental incapacity' is determined
To determine incapacity we need to consider whether the person we're looking after is able to understand the particular issue that they're making a decision about.
We need to consider if they have:
• an impairment or disturbance in the functioning of the mind or brain, and
• an inability to make decisions.
A person is deemed unable to make a decision if they cannot:
• understand the information relevant to the decision,
• retain that information,
• use or weigh that information as part of the process of making the decision, or
• communicate the decision.
Making decisions for someone
If, having taken all practical steps to assist someone, it is concluded that a decision should be made for them, that decision must be made in that person's best interests. We must also consider whether there's another way of making the decision which might not affect the person's rights and freedom of action as much (known as the 'least restrictive alternative' principle).
The Mental Capacity Act sets out a checklist of things to consider when deciding what's in a person's best interests.
• Not make assumptions on the basis of age, appearance, condition or behaviour.
• Consider all the relevant circumstances.
• Consider whether or when the person will have capacity to make the decision.
• Support the person's participation in any acts or decisions made for them.
• Not make a decision about life-sustaining treatment "motivated by a desire to bring about his (or her) death".
• Consider the person's expressed wishes and feelings, beliefs and values.
• Take into account the views of others with an interest in the person's welfare, their carers and those appointed to act on their behalf.
Applying the Mental Capacity Act
Most of the Mental Capacity Act 2005 came into force on October 1 2007 and it has a number of effects on how people can decide on their affairs in case they lose mental capacity.
Lasting powers of attorney and court-appointed deputies
The person cared for can grant a lasting power of attorney (LPA) to another person or people to enable them to make decisions over their personal welfare and their property and financial affairs. There will be a separate legal document in respect of each of these, appointing one or more attorneys.
An enduring power of attorney (EPA) under the previous law was restricted to making decisions over just property and financial affairs. An EPA made before October 1 2007 remains valid.
Powers of attorney can be made at any time when the person making it has the mental capacity to do so. Both an EPA and LPA must be registered. An LPA can be registered at any time but a personal welfare LPA will only be effective once the person has lost capacity to make their own decisions. An EPA can only be registered when the person who made it is losing or has lost the capacity to make their own decisions.
In addition, the Court of Protection will be able to appoint 'deputies' who can also take decisions on health and welfare, as well as in financial matters. They will come into action when the court needs to delegate an ongoing series of decisions rather than one decision. Deputies will not be able to refuse consent to life-sustaining treatment.
The Court of Protection
The Court of Protection oversees the operation of the Mental Capacity Act and deals with all issues, including financial and serious healthcare matters, concerning people who lack the mental capacity to make their own decisions. It also tries to resolve all disputes when the person's carer, healthcare worker or social worker disagree about what's in the person's best interests, or when the views of the attorneys in relation to property and welfare conflict.
The Public Guardian
The role of the Office of the Public Guardian is to protect anyone who lacks mental capacity to make decisions for themselves. It registers LPA and EPA and supervises court-appointed deputies. It supervises court-appointed deputies and provides evidence to the Court of Protection and information and guidance to the public. The Public Guardian works with a range of agencies, such as the police and social services, to investigate concerns.
The independent mental capacity advocate service
The independent mental capacity advocate helps people:
• who do not have mental capacity,
• who have not given powers of attorney to anyone,
• who do not have a court-appointed deputy, and
• who have no friends or family to speak on their behalf.
They will help the person who lacks capacity to make decisions about serious medical treatment, such as heart surgery or electro-convulsive therapy (ECT), and long-term accommodation in a hospital or care home.
That's a fairly hefty chunk of legislation. But it's about an individual's human rights. We all want to live as long and independent a life as we can. Sometimes we make decisions that are plainly stupid, but we all do it. The Act is designed to let us make those decisions, while safeguarding us in times of need.
Checked 16th November 2015 Copyright: Hesslewood Lodge Dental Practice