Mental Capacity Act

Other key policy areas / campaigns

MENTAL CAPACITY ACT 2005

The Mental Capacity Act governs decision-making on behalf of adults, where they lose the capacity to make or communciate a decision at some point in their lives or where the incapacitating condition has been present since birth. Examples include a learning disability, brain injury and mental health problems.

The key parts of the Act are living wills, Code of Conduct and Lasting Power of Attorney (LPA). A living will is when you can make a decision now, about treatment you would want in the future when you have lost capacity.

Lasting Power of Attorney

A LPA is when someone acts on your behalf to make decisions for you. There are 2 LPA forms which cover property and personal welfare. Restrictions and conditions can be placed on the LPA. LPAs will be able to take all decisions about the persons welfare. They won't be able to make decisions about life-sustaining treatment as this will be covered in the living wills.

Concerns - Appropriate measures need to be put in place to make sure that methods of communications other than written and verbal are acceptable for authorising the LPA.

Draft Code of Practice

The Act sets out the legal framework. The Code of Practice sets out guidance and information for those acting under its terms and applying its provision on a a daily basis. As there are many situations that can arise when caring or working with those who lack capacity, the Code of Practice aims to incorporates good practice along with the flexibility to apply the principles to the particular circumstances of the situation.

Key parts of the Act (Communication):

• If there are communication problems, consideration can be given to using a speech therapist or interpreter, or consulting family members to establish the methods of communication. The Code of Practice states that this will apply to very few people.
• Before concluding that someone is totally unable to communicate and therefore lacks capacity, strenuous efforts must first be made to assist and facilitate communication. Communication by simple muscle movements such as blinking an eye or squeezing a hand to indicate yes and no can be sufficient to indicate that the person has the ability to communicate and therefore may have capacity.
• Mechanical devices such as voice synthesisers or other computer equipment can be used for ways to communicate.

The Code of Practice has taken on board better than the LPA the fact that other ways of communication need to be considered other than written and verbal.

When will this be effective from - The Act, Code of Practice and the LPA will be inforce from April 2007.

What we have done -We/have will/ be responding/responded to the Government's consultations on the these.