Mental Capacity and the Mental Capacity Act 2005

Mental Capacity and Decision Making
About the Act and What the Act provides
What Leicestershire County Council will be doing and How we will decide what is in your best interests
Further information

Mental Capacity and Decision Making

Mental Capacity is your ability to make decisions about your life.  Your capacity to make decisions could be effected by an injury, a serious illness, a disability etc.

If you want to plan ahead for a time when you do not have capacity, or if you care for someone who may not be able to make some decisions for themselves, there is useful information about Mental Capacity and Making Decisions available from The Office of the Public Guardian:

• Making decisions about your health welfare or finances: Who decides when you can't?" (.pdf)
• Making decisions: A guide for family friends and carers" (.pdf)

There are several things you can do to prepare for the future.  You can make people aware of what you views and wishes are if you lose capacity in the future, or appoint someone to make decisions on your behalf. Letting people know what you views and wishes are in advance can be helpful for your family, carers and for the people you have chosen to make decisions for you.

You can tell people what your views or wishes are, or write them down.

You can make an Advance Decision to Refuse Treatment, informing medical staff of treatments that you do not want to receive and the circumstances when you would refuse them.  It is advisable to contact your GP and other medical staff who care for you to get advice on making an Advance Decision to Refuse Treatment.

The Mental Capacity Act allows you to appoint someone else to make decisions for you.

• You can appoint a Lasting Power of Attorney for health and welfare; to make decisions about health and personal welfare decisions if you lose capacity in the future
• You can appoint a Lasting Power of Attorney for finances and property; to make financial and property decisions on your behalf now, or if you lose capacity at some time in the future

Some people will already have an Enduring Powers of Attorney and the rules on Enduring Powers of Attorney have changed.  Your Enduring Power of Attorney can still be used, but must be registered if the person who appointed the Attorney loses capacity. People acting as an Enduring Power Attorney have to Act in the best interests of the person they make decisions for. Contact the Office of the Public Guardian for further advice

About the Mental Capacity Act

A new law called the Mental Capacity Act 2005 came into force in two stages in 2007. The first stage came into force on 1 April 2007 and its second stage came into force on 1 October 2007.

The new law affects anyone aged 16 or over who does not have the capacity to make some or all decisions for themselves.  It defines Mental Capacity, or ‘capacity’ as the ability to make a particular decision at a particular time. A person’s capacity can vary from day to day, and from issue to issue. Someone could have capacity to make some decisions, but not all the decisions they need to make.

A lack of capacity could be because of:

• a learning disability
• mental health problems
• brain injury
• dementia
• alcohol or drug misuse, or
• side effects of medical treatment or any other serious illness or disability

The new law will help and support you if:

• you currently find it difficult to make decisions, sometimes or all of the time, or
• you want to plan ahead in case you are unable to make decisions in the future, or
• you care for someone who is unable to make some, or all, decisions for themselves

What the Act provides

The Mental Capacity Act is there to:

• strengthen the rights of people to make their own decisions and to be supported to do so
• protect those who may lack capacity to make a particular decision
• set out in which situations other people can make decisions and act on your behalf if you are unable to do so
• make sure you are involved in decisions that affect you, and
• help resolve disputes about capacity issues

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What Leicestershire County Council will be doing

The Mental Capacity Act is accompanied by a Code of Practice that provides more in-depth guidance for professional staff such as social workers. Our staff will be trained in the use of the Act and the Code of Practice to assist them when they are supporting anyone who lacks capacity.

There are five key principles that our staff will follow:

• a person is assumed to have capacity, unless it is clearly demonstrated that they lack capacity for a particular decision, and the Code of Practice sets out how capacity is assessed
• a person will be supported as much as possible to make their own decisions - before anyone concludes that they lack capacity and makes a decision on their behalf
• a person can make a decision that may seem to others to be an unwise or strange - this does not mean that they lack capacity
• if a person lacks capacity to make a decision, any decisions or actions taken on their behalf will be taken in their best interests
• if our staff  have a variety of options, they will consider how they can decide or act in a way that will minimise any restrictions on the freedoms and rights of the person without capacity

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How we decide what is in your best interests

The Act gives a basic checklist of the sort of things our staff will consider:

• can the decision be delayed - in case you are able to make the decision in the future
• has all the relevant information has been taken into account
• have your wishes, feelings, values and beliefs been considered including anything you have said or recorded that indicates what your views on a decision might be
• have the views of your family members, parents, carers and other people interested in your welfare been considered, if this is practical and appropriate
• whether any decisions have been based merely on your appearance, age, medical condition, or behaviour
• if the decision concerns the provision or withdrawal of life-sustaining treatment, decisions will not be motivated by a desire to bring about your death or be based on assumptions about your quality of life
• Anything else that is relevant must be considered even if it is not included in the checklist

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Further information

The Office of Public Guardian website which includes information booklets about the Act, and Lasting Powers of Attorney

The Department of Health website, including Training Packs

The Mental Capacity Act Code of Practice and summary of the Act