The Mental Capacity Act (MCA) 2005

The MCA protects people's rights

The Mental Capacity Act (MCA) 2005 became law on 1 October 2007.The MCA protects the rights of people over the age of 16 who may lack the mental capacity to make particular decisions for themselves; for example people with dementia, learning disabilities or mental health problems, or patients who have had a stroke or head injury.

The MCA clarifies the rights and duties of individuals, including family, friends and unpaid carers, who work with or care for those who lack capacity. These rights and duties include how to act and make decisions on their behalf, in what situations this can be done and how they should go about this.

It also allows people to plan ahead for a time when they may lack capacity to make decisions for themselves.

The MCA covers major decisions

The Mental Capacity Act covers major decisions about property and affairs, treatment and healthcare and where a person lives, as well as everyday decisions about personal care.

The act sets up new arrangements for Lasting Powers of Attorney to allow individuals to give other people the power to make decisions for them about their finances, property, health care or welfare, should they go on to lose the capacity to make such decisions for themselves.

Arrangements for the Court of Protection and the role of the Public Guardian are also included in the MCA.

Principles of the Mental Capacity Act

The MCA has the following principles that must be followed:

• We must assume a person has capacity unless proved otherwise
• Do not treat people as incapable of making a decision unless you have tried all practicable steps to help them
• A person is not incapable of making a decision just because their decision may seem unwise
• We should always act in the best interests of the person concerned
• Use the action that is the least restrictive of rights and freedoms

Capacity test

A person is unable to make specific decisions for themselves if they are unable to understand the information about the decision, retain that information, use that information to make the decision and communicate their decision.

Best interest checklist

• Consider if the person may regain the capacity to make a decision
• Involve the person who lacks capacity to make the decision
• Have regard for their past and present wishes and feelings
• Consider all relevant circumstances
• Consult with others who are involved with the person
• Do not discriminate because of age, condition or other factor

For further information about the Mental Capacity Act please contact Jo Holloway, the Mental Capacity Act lead on 020 7527 8836 or by email: Jo.holloway@islington.gov.uk

Further information regarding the Mental Capacity Act 2005 can be obtained from the NHS website.

Independent Mental Capacity Advocate (IMCA) service

The Independent Mental Capacity Advocate (IMCA) service came into effect with the Mental Capacity Act (MCA) in April 2007.

The IMCA service provides advocates to speak for a person who lacks capacity and has no one else to support them. Pohwer is the organisation commissioned to provide the IMCA service in Islington.

Reasons for referring people to the IMCA service

You must refer people to the IMCA when a decision is being made about serious medical treatment, or a long term change in accommodation and the person lacks capacity to make that decision. People must also be referred if they do not have friends or family who they feel comfortable to consult with about their decision.

You may also decide to refer someone for an IMCA if they may lack capacity to agree to the arrangements when accommodation is being reviewed or if there is a concern about safeguarding vulnerable adults or an ongoing investigation.

Making a referral to the IMCA service

The decision-maker must decide if the person meets the criteria for an IMCA and make the referral. There is guidance in the Department of Health Code of Practice.

The decision-maker is the NHS or Local Authority professional who will make the decision, for example the doctor performing treatment or a care manager (for an accommodation move).

Further information on the Independent Mental Capacity Advocate (IMCA) service can be obtained from the Department of Health.