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GUIDANCE FOR PRACTITIONERS ISSUED 22/2/2007
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Thursday 22 February 2007 10:53
Department for Constitutional Affairs (National)
Mental Capacity Act: guidance for practitioners
A guide for people making decisions on behalf of those who lack the capacity to do so was laid in Parliament today by Constitutional Affairs Minister Cathy Ashton.
The code sets out good practice and covers an extensive range of different decisions that might need to be taken.
The Mental Capacity Act 2005 requires a range of people to 'have regard' to the code, for example anyone acting in a professional or paid role in relation to someone who lacks capacity.
Baroness Ashton said: "Everyone who cares for, or makes decisions on behalf of, someone who lacks capacity will need to follow the new law when it comes into force. The Code of Practice has been written to meet the needs of this wide and varied audience for clear and accurate guidance.
"We have consulted widely on the code to make sure we get it right. More than 160 individuals and organisations responded to the consultation in October last year and many of the suggestions and comments received have been incorporated into the final version."
The Mental Capacity Act 2005 provides a statutory framework for people who lack the mental capacity to make their own decisions. It sets out who can take decisions, in which situations, and how they should go about this. It also enables people to make provision for a time in the future when they may lack capacity to make some decisions.
Notes to Editors:
1. The Code is available at http://www.dca.gov.uk/capacity/index.htm.
2. The Mental Capacity Act received Royal Assent on 7 April 2005. Some of the Act is due to come into affect in April 2007 and the rest commences in October 2007.
3. Further information about the Mental Capacity Act is available on the DCA website: http://www.dca.gov.uk/capacity/index.htm
http://www.dca.gov.uk
ENDS
Client ref No:019/07
GNN ref 144308P
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TIMETABLE FOR THE IMPLEMENTATION OF THE ACT
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Timetable for implementation of the Act
The timetable for implementing the Act in 2007 was published in December 2006 and is shown below.
There are two distinct phases: April and October.
April 2007
• The new Independent Mental Capacity Advocate service (IMCAs) will become operational in England only.
• The new criminal offence of ill treatment or wilful neglect will come into force in England and Wales.
• Sections 1-4 of the Act (the principles, assessing capacity and determining best interests) which are essential to how IMCAs run will also come into force but only in situations where an IMCA is to be involved, and for the criminal offence. Sections 1–4 of the Act will not apply in any other situations until October 2007.
• The Code of Practice for the Act is due to have completed its Parliamentary passage in April 2007 at which point it will be issued for information and guidance. From this time, in England, those staff involved in statutory best interests decisions where IMCAs have been instructed, will be required to have regard to the Code. It will also provide guidance on the criminal offence.
October 2007
• All other parts of the Act come into force, including IMCAs in Wales will come into force. Those who are required to have regard to the Code for all other purposes (beyond IMCAs in England) will need to have regard from this point.
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Department of Health Principals of the Mental Capacity Act
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Mental Capacity Act 2005 - summary Reference number: gateway number 4840
The Mental Capacity Act 2005 (c.9) received Royal Assent on 7 April 2005
Select a sectionIntroduction
What does the Act do?
Introduction
The Mental Capacity Act 2005 provides a statutory framework to empower and protect vulnerable people who are not 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.
Guidance on the Act will be provided in a Code of Practice. People who are placed under a duty to have regard to the Code include those working in a professional capacity e.g. doctors and social workers. A draft was made available to assist Parliamentary consideration of the Bill and is available on the DCA website (under “Mental Capacity Bill and supporting documents”).
The whole Act is underpinned by a set of five key principles stated at Section 1:
A presumption of capacity - every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise;
The right for individuals to be supported to make their own decisions - people must be given all appropriate help before anyone concludes that they cannot make their own decisions;
That individuals must retain the right to make what might be seen as eccentric or unwise decisions;
Best interests – anything done for or on behalf of people without capacity must be in their best interests; and
Least restrictive intervention – anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms.
What does the Act do?
The Act enshrines in statute current best practice and common law principles concerning people who lack mental capacity and those who take decisions on their behalf. It replaces current statutory schemes for enduring powers of attorney and Court of Protection receivers with reformed and updated schemes.
The Act deals with the assessment of a person’s capacity and acts by carers of those who lack capacity
Assessing lack of capacity – The Act sets out a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time. It is a “decision-specific” test. No one can be labelled ‘incapable’ as a result of a particular medical condition or diagnosis. Section 2 of the Act makes it clear that a lack of capacity cannot be established merely by reference to a person’s age, appearance, or any condition or aspect of a person’s behaviour which might lead others to make unjustified assumptions about capacity.
Best Interests – Everything that is done for or on behalf of a person who lacks capacity must be in that person’s best interests. The Act provides a checklist of factors that decision-makers must work through in deciding what is in a person’s best interests. A person can put his/her wishes and feelings into a written statement if they so wish, which the person making the determination must consider. Also, carers and family members gain a right to be consulted.
Acts in connection with care or treatment – Section 5 clarifies that, where a person is providing care or treatment for someone who lacks capacity, then the person can provide the care without incurring legal liability. The key will be proper assessment of capacity and best interests. This will cover actions that would otherwise result in a civil wrong or crime if someone has to interfere with the person’s body or property in the ordinary course of caring. For example, by giving an injection or by using the person’s money to buy items for them.
Restraint/deprivation of liberty. Section 6 of the Act defines restraint as the use or threat of force where an incapacitated person resists, and any restriction of liberty or movement whether or not the person resists. Restraint is only permitted if the person using it reasonably believes it is necessary to prevent harm to the incapacitated person, and if the restraint used is proportionate to the likelihood and seriousness of the harm.
Section 6(5) makes it clear that an act depriving a person of his or her liberty within the meaning of Article 5(1) of the European Convention on Human Rights cannot be an act to which section 5 provides any protection.
The Department of Health and National Assembly for Wales have each issued interim advice to the NHS and local authorities on the implications of the European Court of Human Rights judgment in HL v United Kingdom (the “Bournewood” case), pending the development of proposals for new procedural safeguards for the protection of those people falling within the “Bournewood gap”.
The Act deals with two situations where a designated decision-maker can act on behalf of someone who lacks capacity
Lasting powers of attorney (LPAs) – The Act allows a person to appoint an attorney to act on their behalf if they should lose capacity in the future. This is like the current Enduring Power of Attorney (EPA), but the Act also allows people to let an attorney make health and welfare decisions.
Court appointed deputies - The Act provides for a system of court appointed deputies to replace the current system of receivership in the Court of Protection. Deputies will be able to take decisions on welfare, healthcare and financial matters as authorised by the Court but will not be able to refuse consent to life-sustaining treatment. They will only be appointed if the Court cannot make a one-off decision to resolve the issues.
The Act creates two new public bodies to support the statutory framework, both of which will be designed around the needs of those who lack capacity
A new Court of Protection – The new Court will have jurisdiction relating to the whole Act and will be the final arbiter for capacity matters. It will have its own procedures and nominated judges.
A new Public Guardian – The Public Guardian and his/her staff will be the registering authority for LPAs and deputies. They will supervise deputies appointed by the Court and provide information to help the Court make decisions. They will also work together with other agencies, such as the police and social services, to respond to any concerns raised about the way in which an attorney or deputy is operating. A Public Guardian Board will be appointed to scrutinise and review the way in which the Public Guardian discharges his/her functions. The Public Guardian will be required to produce an Annual Report about the discharge of his/her functions.
The Act also includes three further key provisions to protect vulnerable people
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. 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.
Advance decisions to refuse treatment – Statutory rules with clear safeguards confirm that people may make a decision in advance to refuse treatment if they should lose capacity in the future. It is made clear in the Act that an advance decision will have no application to any treatment which a doctor considers necessary to sustain life unless strict formalities have been complied with. These formalities are that the decision must be in writing, signed and witnessed. In addition, there must be an express statement that the decision stands “even if life is at risk”.
A criminal offence - The Bill introduces a new criminal offence of ill treatment or neglect of a person who lacks capacity. A person found guilty of such an offence may be liable to imprisonment for a term of up to five years.
The Act also sets out clear parameters for research
Research involving, or in relation to, a person lacking capacity may be lawfully carried out if an “appropriate body” (normally a Research Ethics Committee) agrees that the research is safe, relates to the person’s condition and cannot be done as effectively using people who have mental capacity. The research must produce a benefit to the person that outweighs any risk or burden. Alternatively, if it is to derive new scientific knowledge it must be of minimal risk to the person and be carried out with minimal intrusion or interference with their rights.
Carers or nominated third parties must be consulted and agree that the person would want to join an approved research project. If the person shows any signs of resistance or indicates in any way that he or she does not wish to take part, the person must be withdrawn from the project immediately. Transitional regulations will cover research started before the Act where the person originally had capacity to consent, but later lost capacity before the end of the project.
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