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Mental Capacity Act 2005

We have a responsibility to meet the needs of people, usually aged 16 years or over, who need assistance with making decisions, and those who may not have the ability to make important decisions regarding their future social care, nursing, medical or safeguarding needs.

The Mental Capacity Act's main purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves.

The 5 principles are outlined in Section 1 of the act. These are designed to protect people who lack capacity to make particular decisions, but also to maximise their ability to make decisions, or to participate in decision-making, as far as they are able to do so. There are 5 key principles:

  • a presumption of capacity must be assumed
  • individuals are to be supported to make decisions
  • individuals have a right to make what may seem unwise decisions
  • all decisions must be based on protecting an individual's best interests
  • decisions must be the least restrictive to an individual's rights and freedoms

Information is attached to this page on the requirements of the Mental Capacity Act, how it has been implemented in Derbyshire and information on advance decisions to refuse treatment. The Independent Mental Capacity Advocate (IMCA) service became operational on 1 April 2007.

Assessing mental capacity

It is important to know whether someone has mental capacity to make a decision. Whether they have or not will affect the option for dealing with their affairs, such as whether it is still possible to make a lasting power of attorney (LPA).

If someone can make a decision for themselves, they are said to have the mental capacity to make that decision. If they aren't able to make a decision, because of some form of mental disability, they are said to lack the mental capacity to make that decision. The disability may be either temporary or permanent and could be caused by:

  • dementia
  • brain injury
  • a stroke
  • alcohol or drug misuse
  • the side effect of medical treatment
  • any other illness or disability

A person must be assumed to have capacity unless it is established they don't.

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 tries to resolve 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.

Office of 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 lasting powers of attorney and enduring powers of attorney and supervises court-appointed deputies. It provides evidence to the Court of Protection and guidance to the public. The public guardian works with a range of agencies, such as the police and adult care services to investigate concerns.

The Independent Mental Capacity Advocate Service (IMCA)

Independent mental capacity advocacy helps people who:

  • do not have mental capacity
  • have not given powers of attorney to anyone
  • do not have a court-appointed deputy, and
  • 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 and long-term accommodation in a hospital or care home. Read more about advocacy support in Derbyshire.