The mental capacity act

The mental capacity act empowers and protects vulnerable people who are not able to make their own decisions.

This covers decisions about property and financial affairs, health, welfare and where they live.

It sets out who can take decisions, when and how. It applies to anyone aged 16 or over and sets out a framework for assessing whether a person lacks the mental capacity to make decisions for themselves. This might be because of brain injury; a stroke; dementia; mental health problems; alcohol or drug misuse; side effects of medical treatment; or other illness or disability.

The act supports you if you want to plan in case you are unable to make your own decisions in the future, or if you currently find it difficult to make decisions some or all of the time as a result of illness or disability.

The mental capacity act code of practice provides guidance to all those who care for and/or make decisions on behalf of adults who lack capacity. The code includes case studies and clearly explains in more detail the key features of the mental capacity act.

Useful resources

Frequently asked questions

If you have a condition that means you may lose mental capacity in the future, planning ahead now will make it easier for you and those closest to you to deal with any changes in your situation.

There are three ways you can plan ahead.

Advance decision to refuse treatment

You may have a clear idea about what types of treatment you don't want and would not consent to. If you are aged 18 or over, you can state what particular treatment and in what circumstances you do not want it to go ahead.

Treatment for a mental disorder can still be given, if you are detained under the Mental Health Act 1983. You cannot request a particular medical treatment; only say what treatment you don't want. You cannot make an advanced decision to ask for your life to be ended.

An advanced decision does not need to be in writing, except for decisions relating to life-sustaining treatment, but it is helpful if it is.

Anyone with an existing "living will" should check that they meet the new rules.

Statements of wishes, feelings, beliefs and values

You may choose to write down or tell people about your wishes about future care and treatment and explain your feelings and values that underpin your decisions. These will be taken into account as part of the best interest decision making process, but it is a matter of professional judgement as to whether they are followed.

Lasting Power of Attorney

If you are 18 or over, you can formally appoint one or more people to look after your health, welfare and/or property and affairs decisions, if you lack the capacity to make them for yourself.

To make a Lasting Power of Attorney you need to complete a form available from the Office of the Public Guardian. There is a fee for this registration.

Other resources

You may find these additional websites of use.

An independent mental capacity advocate must be commissioned for anyone who lacks capacity in relation to a specific decision when the person has nobody other than paid staff who it would be appropriate to consult with in regards to best interest decisions.

Independent mental capacity advocates are commissioned by local authorities in England and Wales. There is a duty to ensure that an independent mental capacity advocate is available to represent people who lack capacity to make specific decisions.

What decisions would require an independent mental capacity advocate referral?

  • A decision being made about serious medical treatment;
  • A decision being made regarding accommodation;
  • A care review; and / or
  • Adult protection procedures.

Main elements of independent mental capacity advocate work

An independent mental capacity advocate's role is to support and represent the person who lacks capacity and to audit the way the decision is being made specifically:

  1. Ascertaining the views, feelings, wishes, beliefs and values of the person;
  2. Non-instructed advocacy. Asking questions on behalf to the person and representing them. Making sure that the person's rights are upheld and that they are kept involved and at the centre of the decision-making process;
  3. Investigating the circumstances. Gathering and evaluating information from relevant professionals and people who know the person well; and
  4. Auditing the decision-making process. Checking that the decision-maker is acting in accordance with the Act and that the decision is in the person's best interests. Challenging the decision if necessary.

The referral process

Staff working within medical or care settings must be aware of when an independent mental capacity advocate referral is needed. Local arrangements will be in place within each advocacy service in regards to how a referral can be made.

Useful resources

If a person does not have the mental capacity to manage their own financial affairs and they have no appropriate person to do this for them, we can act as an appointee in dealing with the benefits agencies.

In certain cases, it is necessary for a person's financial affairs to be managed under an order from the court of protection through the mental capacity act 2005 legislation. We operate a dedicated court of protection team to do this, charging annually for the service.

We receive the income of the person and ensure it is managed in the person's best interests, ensuring that a person's bills are paid and that they receive the personal allowance they require. If an accumulation of money builds up, we ensure that an appropriate interest rate is paid on the balance they hold.

Useful resources

Training on the mental capacity act and deprivation of liberty safeguards is available to all our service providers in the independent sector via an e-learning package.

See the  safeguarding training course dates for partner organisations (pdf / 948 KB) document for a list of courses available and how to access them. All courses must be booked online via our Learning Zone.

An account can be created in order to access the following council courses:

  • Deprivation of liberty safeguards - registered managers / deputies / team leaders of care homes and hospitals
  • Supporting individuals (age 16+) to make decisions within the mental capacity act

If you have secured a place on a particular course, but then are unable to attend, please inform employment support immediately by telephoning 01609 532190 or emailing employmentsupportservices@northyorks.gov.uk.

The social care institute for excellence website also offers many videos about mental capacity and related issues. The skills for care website also provides access to more information about the mental capacity act and deprivation of liberty safeguards. See the mental capacity act training resources page on the Social Care Institute for Excellence website for training sets from the Department of Health and other training resources. This Social Care Institute for Excellence directory also provides access to more information about the mental capacity act and deprivation of liberty safeguards.

Training for partner organisations

The following three e-learning packages are available from Kwango: www.kwango.com.

  • Safeguarding adults level 1 alerter
  • Mental capacity act
  • Deprivation of liberty safeguards

For more details, see  how to access the Kwango e-learning for partner organisations here (pdf / 314 KB).

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