Mental Capacity Act 2005
The Mental Capacity Bill completed its passage of the parliamentary hurdles, and was given Royal Assent on 7 April 2005, thus becoming the Mental Capacity Act 2005. The text of the Act can be downloaded here.
The Mental Capacity Act, which came into force in April 2007, will make a major difference to people working in adult medicine.
Changes to previous legislation and new concepts
Formalising the "principle of necessity"
Prior to the MCA, adults without consent could be treated if it was necessary, using a common law defense of "necessity".
This has been formalised in the MCA, which states:
5 Acts in connection with care or treatment
- (1) If a person ("D") does an act in connection with the care or treatment of another person ("P"), the act is one to which this section applies if-
- (a) before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and
- (b) when doing the act, D reasonably believes-
- (i) that P lacks capacity in relation to the matter, and
- (ii) that it will be in P's best interests for the act to be done.
- (2) D does not incur any liability in relation to the act that he would not have incurred if P-
- (a) had had capacity to consent in relation to the matter, and
- (b) had consented to D's doing the act.
- (3) Nothing in this section excludes a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing the act.
- (4) Nothing in this section affects the operation of sections 24 to 26 (advance decisions to refuse treatment).
Or, in slightly plainer English, as long as you take reasonable steps to ascertain that the patient lacks consent, you reasonably believe that they lack consent, and it is in the patient's best interests that you treat them, you will be no more liable for treating them than if the patient had capacity, and you were acting with their consent.
Enduring power of attorney
The Act will repeal the one creating the concept of Enduring Power of Attorney (EPA). "Although the Enduring Powers of Attorney Act 1985 will be repealed on implementation of the Mental Capacity Act, the legal effect of an EPA already made under the current law will be preserved."
Lasting Power of Attorney (LPA)
The act replaced the "Enduring power of attorney" with a "Lasting Power of Attorney" (LPA). " A Lasting Power of Attorney (LPA) is a new statutory form of power of attorney created by the Mental Capacity Act. Anyone who has capacity to do so may choose a person (an “attorney”) to take decisions on their behalf if they subsequently lose capacity. The LPA will replace the Enduring Power of Attorney (EPA) currently provided for by the Enduring Powers of Attorney Act 1985. Unlike an EPA, an LPA can extend to personal welfare matters as well as property and affairs."
Independent Mental Capacity Advocate (IMCA)
The act introduces a new concept - the independent mental capacity advocate (IMCA). "When a person who lacks mental capacity has to make a serious decision about treatment or where they live, an independent mental capacity advocate (IMCA) is appointed to support and represent them. The IMCA voices the person’s wishes, feelings, beliefs and values and they make the decision maker aware of all relevant information. They can also challenge the decision maker."
When did the Act come into force?
The MCA came into effect on April 1st 2007, after being passed in 2005, to allow time for the changed procedures to be communicated. It has now rendered some procedures - including Section 47 of the National Assistance Act - unnecessary.
- Consent (lists various Acts under which individuals may be detained for reasons related to health or illness, or treated without their consent).
- Mental health law
- The Office of the Public Guardian
- "Independent Mental Capacity Advocacy service from April 2007" paper (dated Feb 2007) from DH.
- BMJ review Assessing mental capacity: the Mental Capacity Act (subscription/membership required)
- The key government departments for doctor's purposes are the Department for Constitutional Affairs (DCA) and the Department of Health.
- Historic DCA "Department for Constitutional Affairs website"
- Full text of the Act here.
- Mental Capacity Act 2005 - summary, at DH website
- Need 2 know two-side summary of the MCA from Foundation for people with learning disabilities (?formerly known as Mental Health Foundation).
- Dr Julian Sheather, Deputy Head of the BMA's Medical Ethics Committee explains what the Mental Capacity Act in England means for doctors and patients (video).
- ↑ a b c DCA "Q&A"
- ↑ Department for Constitutional Affairs. Mental capacity. Last viewed: January 5, 2007
- ↑ C Dyer. Code sets out framework for "living will" (news item). BMJ 2006;332:623, doi:10.1136/bmj.332.7542.623-a Also available online from BMJ ((subscription required, last accessed 22nd Match 2006.)
- ↑ Department of Health. Independent Mental Capacity Advocacy service from April 2007. 2007, 22 February. Gateway number: 7890 (or via here)
- ↑ Nicholson TR, Cutter W, Hotopf M. Assessing mental capacity: the Mental Capacity Act. BMJ (Clinical research ed.). 2008 Feb 9; 336(7639):322-5.(Link to article – subscription may be required.))