Mental Capacity Act 2005

NCPC is continuing to work closely with the Department of Health and the Ministry of Justice (formerly the Department for Constitutional Affairs) in relation to the Mental Capacity Act 2005 (MCA). We were one of the first organisations in the country to publish guidance about the MCA, to help people and organisations prepare for its implementation. Following the success of that early publication, we have now published new and up to date guidance. This is available for purchase here and can be downloaded by subscribers here.

The MCA came into force in 2007. It makes new law governing the way in which decisions are made on behalf of people with impaired mental capacity to make decisions for themselves. Examples of people in that situation in the context of palliative and end of life care include:

• People living with dementia
• People living with impaired cognitive function
• People living with learning disability
• People living with severe psychiatric disorders
• Older people experiencing frailty
• People who are experiencing delirium or confusion
• People with fluctuating capacity or consciousness
• People on medication which causes persistent, transient or fluctuating cognitive impairment
• People who are imminently dying and who no longer have full mental capacity
• People who are unconscious.

The MCA has a significant impact on palliative and end of life care. Some of the most important features are as follows:

•  New statutory tests, or checklists:
• to assess capacity
• to determine best interests
• An emphasis on the importance of person-centred care
• A duty to consult next of kin about their relative’s best interests
• People’s wishes and priorities must be taken into account when assessing their best interests, which means that advance care planning cannot be ignored
• A new framework for advance decisions to refuse treatment
• New proxy decision-making under Lasting Powers of Attorney or when Deputies are appointed by the court to make decisions
• New advocacy in some cases – Independent Mental Capacity Advocates
• There is a Code of Practice, which professional carers must have regard to
• There is a new Court of Protection  and Office of the Public Guardian
• There are two new criminal offences: wilful neglect & ill-treatment

NCPC has been working closely with the NHS End of Life Care Programme in relation to advance care planning and advance decisions. We will be publishing joint guidance on advance decisions later in 2008. Guidance on advance care planning can be downloaded by clicking here.

NCPC is arranging a series of ten MCA-themed area events throughout England during 2008. These events set the MCA into the context of the forthcoming end of life care strategy and explain how it can be used to improve care and communication as well as to help people express and protect their choices. The first events have been extremely well-received by those attending. Further details about the forthcoming events can be found here.

The full text of the MCA can be found at http://www.opsi.gov.uk/acts/acts2005/20050009.htm (External Link)

Further information about the MCA can be found at the Department of Constitutional Affairs’ website at http://www.dca.gov.uk/menincap/legis.htm