Mental Capacity Act 2005
Ten things Health and Social Care staff need to know about the Act
| 1 | The Act provides a legal framework for acting and making decisions on behalf of people aged 18 (in certain circumstances age 16) and over whom lack the mental capacity to act or make decisions themselves. The Act replaces existing common law governing the treatment of people without capacity and covers a range of choices from day-to day decisions such as what to wear or eat, through to decisions about where to live, medical treatment, finances and property. |
| 2 | Everyone working with and/or caring for people who lack capacity must comply with the Act. |
| 3 | This Act is supported by the ‘Mental Capacity Act 2005 Code of Practice’. Doctors, nurses, social workers and others working in a professional or any paid role have a legal duty ‘to have regard’ to this Code of Practice. You must explain any non-compliance with this Code and record the reasons at the same time as you make the decision not to follow the Code. |
| 4 | Five principles are set out in section 1 of the Act. All decisions and actions carried out under this Act must be tested against these and you must know these principles and measure your decisions and actions against them. Failure to take them into account could be cited in legal proceedings as evidence of unlawful conduct. |
| 5 | The Act defines a person who lacks capacity (section 2) and sets out the test for determining whether a person is unable to make a particular decision and therefore lacks capacity (section 3). If you doubt a person’s capacity and are considering making a decision on their behalf, you must apply these sections of the Act and fully record both your decision and the reasoning behind your decision, in the relevant clinical and/or practice record. |
| 6 | If you are making a decision or acting for a person without capacity you must consider the checklist set out in section 4 to assess whether the act or decision is in their ‘best interests’. As all such acts or decisions made must be in the ‘best interests’ of the person without capacity, a full record of the ‘best interests’ assessment must be made in the relevant clinical and/or practice record. |
| 7 | The Act introduces designated decision-makers (a person with a Lasting Power of Attorney (section 9) and a Court appointed Deputy (section 16)) who can make decisions, including welfare and treatment choices, on behalf of a person without capacity. It also creates the role of Independent Mental Capacity Advocate (section 35), who is appointed to support a person who lacks capacity and has no one to speak for them, such as relatives. You must understand the legal role that such people have in treatment decisions, know when it is appropriate to involve them, how to involve them, how much access to confidential information they must be allowed and record their involvement in the relevant clinical and/or practice record. |
| 8 | The Act gives statutory force to advance decisions to refuse treatment and allows a person to decide in advance to refuse specified treatment if they lose capacity in the future. You must be aware when an advance decision is valid and applicable, follow it and record the existence of an advance decision in the relevant clinical and/or practice record. |
| 9 | The Act defines ‘restraint’ and sets out guidance on when restraint is lawfully permitted (section 6). This is one of several areas where this statute may overlap with the provisions of the Mental Health Act 1983. |
| 10 | The Act creates 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 a fine, a term of imprisonment not exceeding five years or both |
With thanks to Derbyshire Mental Health Services NHS Trust for helping compile these items
