Mental Capacity Act 2005 - Making Decisions - your rights

by Sandra Long

In 2006 VIA received a Section 64 grant from the Department of Health for a 1 year project to “build on VIA’s previous work around supported decision making, consent and capacity. VIA will re-focus on supported decision-making approaches to take account of the Mental Capacity Act (2005). This Act is to be implemented in April 2007. VIA has also received funding from Department of Health to provide awareness training on the MCA in all the 8 regions of Valuing People Support Team. 

The Department of Constitutional Affairs has published a variety of information about the Act, including easy read summaries, which can be downloaded form their website, for more in depth reading, so I will just outline the main points of the Act.

• Start off by thinking that everyone has capacity (can make their own decisions)

• Give the person all the support they need and information about the decision in a way that they can understand (easy read, pictures, symbols, photos, tapes, videos)

• Nobody should be stopped from making a decision just because other people think it is “wrong” or “bad”

• If other people think that a person lacks capacity (can’t make their own decisions) they must act in the persons best interests

• Anyone who acts or decides something for another person who lacks capacity must try to limit their freedom and rights as little as possible.

• Nobody should make assumptions about someone’s capacity because of the way they look, their age, disability or the way they act.

• Someone who is taking a decision on behalf of a person who lacks capacity must make sure the person is involved, and take into account the views of those who know the person well.

• There will be a new service for people who lack capacity, have no friends or relatives, and need to make big decisions about moving home or medical treatment.  This is the Independent Mental Capacity Advocate or IMCA. The IMCA can find out what the person wants and speak for them, but cannot make decisions.

• There will be a new Court of Protection which can make difficult decisions for people who lack capacity.  The Court can also appoint a deputy to act in the best interests of the person and make decisions. 

• There will be a new Public Guardian who will supervise the work of the deputies.

• People who have capacity can appoint someone to have Lasting Power of Attorney, to take care of their interests if they cannot make their own decisions in the future.

• The Code of Practice sets out the ways anyone working with people who may lack capacity should take the Act into account.  People who are paid to do this work have a duty to pay attention to the Code.

It includes a two-stage Test of Capacity

1. Is there a problem with the way a person’s mind or brain works?

2. Is the problem stopping them from making the decision?

To make the decision the person has to understand the information about it, the good and bad points, remember that information and let others know.

The project finished in 2007.

© 2008 Values Into Action