2. What is the Mental Capacity Act and what does it do?

The MCA creates a single, coherent framework for dealing with mental capacity issues and an improved system for settling disputes, dealing with personal welfare issues and the property and affairs of people who lack capacity.

It puts the individual who lacks capacity at the heart of decision making and places a strong emphasis on supporting and enabling the individual to make his/her own decisions. If they are unable to do this, it emphasises that they should be involved in the decision making process as far as possible.

It introduces important new safeguards for people who lack capacity and the people who work with, support or care for them.

The MCA is underpinned by five principles; see Five Principles of the Mental Capacity Act 2005.

It outlines the statutory responsibilities for everyone who works with people over the age of 16 who lack capacity to make all, or some, decisions for themselves.

It is accompanied by the statutory Mental Capacity Act 2005 Code of Practice (Department of Constitutional Affairs, 2007) which explains how the MCA works on a day to day basis and provides guidance to all those working with, or caring for, people who lack capacity. When working with people who lack capacity in a professional or paid role there is a legal duty to have regard to the Code of Practice.

It introduced:

• a clear statutory framework that there must always be the presumption that people who are provided with care or treatment have capacity to make decisions for themselves;
• a single clear test for assessing whether a person lacks capacity to make a decision (see Assessing Mental Capacity);
• a non-exhaustive check list to help determine what is in the ‘best interests’ of a person lacking capacity (see Best Interests);
• more ways for people to influence what happens to them if they are unable to make particular decisions in the future, including advance decisions to refuse medical treatment, written statements of wishes and feelings, and creating Lasting Powers of Attorney (LPAs);
• clarified the actions which can be taken if someone does lack capacity, and the legal safeguards that govern this (see Providing Care or Treatment to People who lack Mental Capacity: Issues for Staff);
• an obligation to consult people who are involved in caring for the person who lacks capacity and anyone interested in their welfare (for example family members, friends, partners and carers) about decisions affecting that person. If there is an attorney under a LPA, a deputy appointed by the Court of Protection or named person, there is also an obligation to consult them;
• the Independent Mental Capacity Advocate (IMCA) service. An IMCA will be involved in certain decisions if there are no family or friends who can be consulted, and may be involved in any case relating to a safeguarding adults matter (see The Independent Mental Capacity Advocate Service);
• a criminal offence of ill-treatment or neglect (see Providing Care or Treatment to People who lack Capacity: Issues for Staff);
• safeguards for undertaking research involving people who lack capacity (see Research Involving People Who May Lack Capacity);
• the Court of Protection, and the Public Guardian who is supported by the Office of the Public Guardian (OPG).

There are certain decisions which can never be made on behalf of a person who lacks capacity to make those specific decisions. This is because they are either so personal to the individual concerned or are governed by other legislation. No one, including the Court of Protection, can make a decision on another’s behalf about:

• consenting to marriage or a civil partnership;
• consenting to have sexual relations;
• consenting to a decree of divorce being granted on the basis of two years’ separation;
• consenting to a dissolution order being made in relation to a civil partnership on the basis of two years’ separation;
• consenting to a child being placed for adoption by an adoption agency;
• consenting to the making of an adoption order;
• discharging parental responsibilities in matters not relating to a child’s property;
• giving a consent under the Human Fertilisation and Embryology Act 1990);
• voting at an election for any public office or at a referendum.

Although the MCA does not allow anyone to make a decision about these matters on behalf of someone who lacks capacity to make such a decision for themselves, this does not prevent action being taken to protect a vulnerable person from abuse or exploitation.

There are other laws that can be used in some of these cases, such as the Sexual Offences Act 2003 or legislation relating to marriages for example; Coventry Legal Services can be contacted by social workers for advice.

In cases where abuse is suspected staff must follow the West Midlands Adult Safeguarding Policies and Procedures.