The Mental Capacity Act 2005 is a vitally important piece of legislation that applies within England and Wales and makes a real difference to the lives of people who may lack mental capacity. It empowers people to make decisions for themselves wherever possible, and protects people who lack capacity, by providing a flexible framework that places them at the very heart of the decision making process. It places a strong emphasis on supporting and enabling the individual to make his/her own decisions. If they are unable to do this it emphasises that they should be involved in the decision making process as far as possible.
The Mental Capacity Act 2005, covering England and Wales for people aged 16 years or over, provides a statutory framework for people who lack capacity to make decisions for themselves or have capacity and want to make preparations for a time when they may lack capacity in the future. The Act covers a wide range of decisions for example, supporting a person lacking capacity with their activities of daily living, supporting a person lacking capacity to manage their property and finances, supporting a person lacking capacity with serious medical treatment decisions.
Who will Assess Capacity?
The person who wishes to take some action in connection with the person’s care or treatment, or who is contemplating making a decision on the person’s behalf - this may mean that it is you.
Health and Social Care staff or relevant experts must be involved when an assessment and/or decision has particularly significant consequences, such as:
- It will impact on the person’s quality of life
- Within complex cases or where there is a dispute
- Where there may be legal consequences
- There must always be the presumption that a person has capacity to make decisions for themselves.
- A single clear test for assessing whether a person lacks capacity to make a particular decision.
- A check list of key factors to consider and help determine what is in the ‘best interests’ of a person lacking capacity.
- Several ways that people can influence what happens to them if they are unable to make particular decisions in the future, including advance decisions to refuse medical treatment, statements of wishes and feelings, and creating a Lasting Power of Attorney.
- An Independent Mental Capacity Advocate (IMCA) service which will only have to be involved in specific circumstances where there is no one appropriate who can be consulted in the decision making process.
- A new criminal offense of ill-treatment or wilful neglect of people who lack capacity.
- New safeguards for undertaking research involving people who lack capacity.
- A new Court of Protection and a new public official (the Public Guardian) who will be supported by the Office of the Public Guardian (OPG).
- You may have the capacity to make everyday decisions, but not to make larger, more complex decisions.
- You may have the capacity to make decisions one day but not the next.
- Your capacity to make decisions might improve or get worse over time
Best Interest Checklist - factors to be considered by the decision maker whilst considering the best interests decisions
Checklist to determine if someone needs an Independent Mental Capacity Advocate?
Printable chart for reference
This policy has been produced as a joint document between Devon County Council (DCC) and Torbay and Southern Devon Health and Care NHS Trust (TSDHCT)
Referral form for the Devon and Torbay Independent Mental Capacity Advocacy (IMCA) Service
A formal best interests meeting may be required to plan the decisions needed where the issues facing the Person are very complex or life changing
Contact SEND Reforms
- Email: SENDreforms@torbay.gov.uk
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