Key legislation - Mental Capacity Act 2005
The MCA has been in force since 2005 and applies to England and Wales. The principles of the Act support the promotion of dignity in care by ensuring that individuals are at the centre of decision-making and that they are safeguarded within a legal framework. The primary purposes of the MCA are to:
- empower people to make decisions for themselves wherever possible and protect people who lack capacity by providing a flexible framework that places individuals at the heart of the decision-making process
- allow people to plan ahead for a time in the future when they might lack the capacity, for any number of reasons, to make decisions for themselves.
The Act is underpinned by five key principles.
Those who work with people who lack capacity have a legal duty to have regard for the Code of Practice. It is also relevant to unpaid carers who will be helped and guided by it. The Code explains how the MCA works on a day-to-day basis and provides guidance to those working with people who may lack capacity.
The new roles, bodies and powers supporting the MCA are as follows::
- Attorneys appointed under lasting powers of attorney (LPAs) – the Act introduced a new form of power of attorney, which allows people over the age of 18 to formally appoint one or more people to look after their health, welfare and/or financial decisions, if at some time in the future they lack capacity to make those decisions for themselves.
- Court of Protection and deputies – the MCA created a new court and a new public official to protect people who lack capacity and to supervise those making decisions on their behalf. The Court is able to appoint a deputy, for example, because a person has an ongoing lack of capacity to make important decisions. The Court will tailor the powers of the deputy according to the circumstances of the individual.
- The Public Guardian – the role of the Public Guardian is to protect people who lack capacity from abuse. The Public Guardian is supported by the Office of the Public Guardian (OPG). The OPG maintains a register of LPAs and eduring powers or attorney (EPAs). It also maintains a register of the Court-appointed Deputies and is responsible for supervising them.
- Independent mental capacity advocate (IMCA) – IMCAs are a statutory safeguard for people who lack capacity but nevertheless need to make important decisions and who do not have family or friends who can represent them. IMCAs can support people with decisions about where they live and serious medical treatment. They can also represent individuals who are the focus of safeguarding or Deprivation of Liberty proceedings. See SCIE’s IMCA resource.
- Advance decisions to refuse treatment – the Act created statutory rules with clear safeguards so that people may make a decision in advance to refuse treatment if they should lack capacity in the future. Information on advance decisions is in Chapter 9 of the Code of Practice.
Deprivation of Liberty Safeguards
The MCA allows restrictions and restraint to be used, but only if they are in the best interests of a person who lacks capacity to make the relevant decision themselves. However, special extra protection is needed for a person if the level of restraint used goes beyond what is allowed under the MCA and amounts to depriving a person of their liberty.