FAQs

When does the Mental Capacity Act come into force?

Some elements of the legislation will become operational in April 2007, the rest of the Act will come into force in October 2007. The following things will be implemented in April:

• the new independent mental capacity advocacy (IMCA) service;
• the new criminal offence of ill-treatment or wilful neglect;
• sections1-4 of the Act (the principles, assessing capacity and determining best interests) in situations where an IMCA could be involved and for the purposes of the criminal offence;
• those who must have regard to the code of practice will need to do so in situations where an IMCA could be involved.

What is mental capacity?

This is the ability to make decisions or take actions, which can range from decisions about everyday matters like what to eat or what to wear, to decisions that could have legal or financial consequences, for ourselves or other people. According to the new law, a person is unable to make a particular decision if they cannot do one or more of the following:

• understand information given to them
• retain that information long enough to be able to make the decision
• weigh up the information available to make the decision
• communicate their decision

The Mental Capacity Act is specifically concerned about situations where someone is unable to make a decision because their mind or brain is affected by illness or disability, or the effects of drugs or alcohol. It is presumed that people have the capacity to make decisions. Any assessments of someone's capacity should be specific to a particular decision at a particular time.

Who decides if someone has the capacity to make a decision or not?

If you're in a position where you might need to make a decision for someone who may lack capacity, then you must decide whether that person is able to make the decision on their own. Some carers are likely to find themselves in this position quite frequently. There will also be times when a professional, such as a doctor or social worker, will need to make a decision about someone's capacity. Before anyone acts on behalf of someone else, they must have 'a reasonable belief' that the person concerned lacks the capacity to make the decision for themselves.

Carers may become involved in assessing someone's capacity because they have been asked for their views by a professional or because they need to do something to care for the person concerned.

What happens if someone lacks capacity to make the decision for themselves?

If a person does not have capacity to make the decision for themselves, then others will have to act in their best interests. Anything done to or on behalf of someone who lacks capacity to make the decision for themselves must be in their best interests - this is one of the key principles of the Act. More useful information about the Act, for carers and other people, can be found in the 'Making Decisions' booklet which can be viewed on the Department of Constitutional Affairs website.

What is an Independent Mental Capacity Advocate (IMCA)?

An Independent Mental Capacity Advocate (IMCA) is someone instructed to support and represent a person who lacks capacity to make certain serious decisions. Their role is to gather information, provide support to the person concerned and make representations about that person’s wishes, feelings, beliefs and values, at the same time as bringing to the attention of the decision-maker all factors that are relevant to the decision. They can also challenge the decision-maker.

Can I plan ahead for the future?

If you have difficulties in making decisions, you may want to plan ahead in case you are unable to make important decisions for yourself in the future.

The Mental Capacity Act and the Mental Health Act's Guardianship Order section seem to be in direct conflict, please explain.

The Mental Health Act 1983 (MHA) provides ways of assessing, treating and caring for people who have a serious mental disorder that puts them or other people at risk. Guardianship is available under the MHA to enable people to receive care in the community where it cannot be provided without the use of compulsory powers. An application can be made for someone to be received into guardianship under section 7, and a court can appoint a guardian under section 37 of the MHA, if the local authority considers it necessary for the person's welfare or the protection of others.

Guardianship gives someone (usually a local authority social services department) the exclusive right to decide where a person should live; attend for medical treatment, occupation, education, or training; and require a doctor, approved social worker or another relevant person to be given access to the person. The Mental Capacity Act (MCA) cannot be used in any way that conflicts with decisions which a guardian has a legal right to make under the MHA. Similarly, an independent mental capacity advocate has no role to play in decisions about accommodation made by a guardian.

How does this square with the MCA and its principles of assuming capacity and supporting people to make their own decisions?

Guardianship under the MHA can apply to a person with a mental disorder whether or not the person has the capacity to make decisions about their care and treatment. However, the MCA may provide an alternative way of promoting the best interests of some people who lack capacity in relation to these issues. The MCA code of practice is clear in saying that decision-makers must never consider guardianship as a way to avoid applying the MCA.

However, use of the MHA may still be justified on the grounds that there are limits to the powers of guardians (they cannot detain the person or restrict their movements; they cannot authorise their physical removal from a place if they are unwilling, or authorise medical treatment; they have no control of the person's money or property; and a guardianship order is time limited) and the MHA includes safeguards of its own – specifically the nearest relative's right of appeal to a mental health review tribunal.