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Download The Mental Capacity Act 2005
A brief presentation of the key elements of the act: Dr D J Nightingale
INTRODUCTION
A statutory framework to empower and protect vulnerable people who are not able to make their own decisions
It has been in the making for over 14 years
It will come in to force in April 2007
THE OLD SYSTEM
This had 2 major flaws:
Many people who lack capacity to make certain decisions at certain times were deemed to be incapable of making any decisions at any time.
People who voluntarily care for people who do lack capacity, and who make decisions on their behalf, had no protection in law against a complaint
THE MENTAL CAPACITY ACT 2005
This is underpinned by 5 key principles
PRINCIPLE 1 and 2
1 .There is a presumption of capacity unless it is proved otherwise.
2. All appropriate help must be given to the person to make there own decisions before anyone concludes that they cannot do so.
PRINCIPLE 3 and 4
3. People must retain the right to make what might be seen as eccentric or unwise decisions – an elective risk.
For example, somebody might be advised to use a zimmer frame to reduce the risk of a fall. The person refuses.
The elective risk must be recorded in the care plan and signed by the client.
4. Anything done with or for people without capacity must be in their best interests
PRINCIPLE 5
5. Anything done for, or on behalf of, people without capacity should be the least restrictive of their basic rights and freedoms:
In respect of this final principle, there is an obvious link with POVA
ASSESSMENT
A single clear decision specific test for assessing whether a person lacks capacity to take a particular decision at a particular time:
No medical condition or diagnosis indicates incapacity
It is a functional test taking a number of reasons into consideration as to whether a person may be unable to make a decision:
Does the person comprehend the information relevant to the decision – for example: selling home to cover the cost of care
The person must be able to retain this information for long enough to make the decision – for example: immediate memory loss disables the persons capacity
The person must be able to use and weigh the information to arrive at a choice
If the person cannot undertake any ONE of these three aspects of the decision making process then they are said to be unable to make the decision
There is a fourth situation:
Inability to communicate their wishes, to protect those with, for example, Locked-in syndrome
A small number of people in this category would be assessed as not having capacity
THE DECISION MAKERS
Social care decisions – not at all clear
Health care decisions – appointment of
donees and court appointed deputies to take decisions for the incapacitated person. Doctors are prime candidates, though the Act does not make this clear
It is now law that carers and family members are involved in drafting care plans.
WHAT NOW?
Care plans must contain decisions about a person’s capacity.
All those receiving care will have to have their capacity assessed, especially those with dementia, a learning disability or mental illness.
The key to prevent legal liabilities lies within proper assessment of capacity and best interests and their agreed actions included in the care plan.
ADVOCATES
An Independent Mental Capacity Advocate will be appointed to those who have been judged as having no capacity.
He/she will act on behalf of the individual in all aspects of life decisions .
© Dr Daniel Nightingale 2007
All enquiries are welcomed at:
Tel: 01933 650875
Mobile: 07920 462541
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