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Mental Capacity Act – what are the major changes?

25 October 2007

 

On 1 October 2007, the Mental Capacity Act 2005 came into force. Although intended to provide a simplified view on the law for the care and treatment of people who lack capacity, the importance of the issues addressed has resulted in a wide ranging Act supported by a Code of Practice running to nearly 300 pages. But what changes have been made and how will this affect individuals lacking capacity?

Major changes

• The Act goes beyond previous legislation, which was limited to making financial decisions, to now encompass making personal welfare and healthcare decisions for adults aged 16 or over

 

• The test for assessing an individual’s capacity, previously developed through decisions by the courts, has now been codified with guidance provided on who should be assessing capacity and what they should be looking at when making their assessment

 

• Capacity can fluctuate not only from day-to-day, but also from decision to decision. As a result, capacity must be assessed on a decision by decision basis

 

• Independent Mental Capacity Advocates (IMCAs) must be involved where NHS bodies or Local Authorities are making certain decisions for individuals who have no family or friends to speak on their behalf

 

• There is a new criminal offence of ill treatment or wilful neglect which carries a fine or up to five years in prison

 

• Enduring Powers of Attorney have been replaced by Lasting Powers of Attorney (LPAs). An LPA allows an individual to make decisions about your health and welfare ranging from whether you should go into a Local Authority home to whether you should receive life-sustaining treatment in hospital, depending on how the LPA is drafted

 

• There are now guidelines for what constitutes a valid Advanced Decision, sometimes referred to as a “living will”

 

• The Office of the Public Guardian (OPG) has replaced the Public Guardianship Office. The OPG will work with the decision maker and provide support and guidance. They will also supervise deputies, who have replaced the previous receivers

 

• There is a new Court of Protection which has taken over from the High Court for health, welfare, finance and property issues for over 18’s in the context of issues of capacity. There are certain cases which must go before the Court of Protection before a decision can be made, for example withdrawal of nutrition if in a persistent vegetative state

Conclusion

The Mental Capacity Act 2005, in particular for those working in the health and social care sectors, will impact on day-to-day practice with immediate effect. The scope of the Act is wide and the volume of guidance available can, at first glance, seem overwhelming. However, the breadth of decisions that can be made on an individual’s behalf under the Act, ranging from where they live and how their finances should be managed to whether or not they should have life-sustaining treatment, warrants the detail provided in the Act and Code of Practice.

 

Further information and advice

If you would like to receive a briefing note dealing with some of the areas listed above, please click here.

 

The content of this bulletin is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.