The Mental Capacity Act 2005 (MCA) provides a statutory framework to empower and protect vulnerable people who may not be able to make their own decisions. It makes it clear who can take decisions in which situations and how they should go about this. It enables people to plan ahead for a time when they may lose capacity. The protection afforded through this Act is achieved through the activities of three main organisations:
The Court of Protection
The Public Guardian
The Independent Mental Capacity Advocate (IMCA)
The MCA provides a substitute decision-making framework for adults who lack the ability to make a decision for themselves. Their lack of capacity must be caused by an impairment of, or disturbance in, the functioning of the mind, so includes those suffering from psychiatric illness, learning disabilities, dementia, brain injury or mental illness, but also includes those who may have lost mental capacity temporarily due to drugs or alcohol. It applies to physical and mental health as well as to financial matters.
‘Substituted decision-making’ is where someone makes decisions on such a person’s behalf, based on what is in their best interests, because they cannot make decisions for themselves. The MCA formalised a substitute decision making scheme for health care based on personal autonomy, based on three fundamental concepts:
Decision-making capacity
Best interests
Anticipatory decision-making
‘Supported decision-making’ is where such a person is assisted in making their own decisions.
The MCA presumes the ability to decide, but when this is in doubt, requires an assessment of the decision-making capacity. This assessment determines whether a health care professional needs to act in a person’s best interests, or in a way that respects informed, freely given, patient choice.
It tests the ability to:
Understand relevant information, and
The ability to make decisions on the basis o...
Shortened demo course. See details at foot of page.
...otection.
The MCA (Mental Capacity Act) Code of Practice states that a deputy should:
Only make decisions in the person’s best interests
Only make decisions allowed by the court
Always apply a high standard of care when making decisions (keeping notes and documents, etc.)
A deputy cannot make or change the person’s will, make large gifts out of their money, or hold any property or money on behalf of that person.
The Office of the Public Guardian
The OPG protects people who lack the mental capacity to make their own decisions within the framework of the Mental Capacity Act 2005. Its functions include regulating and supervising court-appointed deputies, maintaining a register of EPAs and LPAs, dealing with complaints about attorneys and deputies, working with other organisations such as the police and social services, and providing support to the Court of Protection in respect of the way in which attorneys and deputies carry out their duties.
The Public Guardian is personally responsible for the management and organisation of the OPG. The Public Guardian Board scrutinizes the Public Guardian and reports to the Chancellor.
Independent Mental Capacity Advocate (IMCA)
An IMCA is someone appointed to support a person who lacks capacity but has no one to speak for them, such as family members. The IMCA makes representations about the person's wishes, feelings, beliefs and values, at the same time as bringing to the attention of the decision-maker all factors that are relevant to the decision. The IMCA can challenge the decision-maker on behalf of the person lacking capacity if necessary.
Decision-makers in the NHS and in local authorities (e.g. doctors and social workers) have a duty to consult the IMCA for the most vulnerable, and IMCAs are also involved in a change in a person’s accommodation where it is provided by either of these public bodies.
An IMCA can challenge decisions made by an attorney or deputy.
