Health

Mental Capacity

On 1 October 2007, the new Mental Capacity Act 2005 came fully into force and applies to people aged 16 years and over. This web page has been written to explain what the Act will achieve and how Barking and Dagenham are supporting this.

What is mental capacity?

In its day-to-day context, mental capacity means the ability to make decisions or take actions affecting daily life - what time to get up, what clothes to wear, when and what to eat etc.

In the legal context, mental capacity refers to a person's ability to do something, including making a decision, which may have legal consequences for the person themselves or for other people (examples could include making a will, opening a bank account).

Situation prior to 1 October 2007

Until the new Act was fully implemented, there were many difficulties in determining someone's mental capacity;

Previous laws lacked consistent approach to considering mental capacity
People's autonomy was not always respected
There was a lack of clear legal authority for people who act on behalf of a person lacking capacity, such as a carer
An adult could not plan ahead for health and welfare decisions
There was no right for relatives and carers to be consulted
There was a real need to improve safeguards for financial matters and put them in place for health and welfare

Some Key Principles of the new Act

The starting-point will be to assume that every person has capacity to make the decision in question (presumption of capacity). Recognising that some people may need help or support to be able to make a decision or communicate their decision but the need for help and support does not automatically mean that they cannot make their decision.

In legal dealings, the burden of proof will fall on any person who claims that another person lacks capacity. The person making the claim will have to show, on the balance of probabilities, that the individual lacks capacity to make the decision in question.

The Act sets out the test for assessing whether a person is unable to make a particular decision and therefore lacks capacity. In applying these together, the Act requires a 'functional approach' when deciding whether a person lacks decision-making capacity.

Therefore the Act clarifies that that mental capacity is decision specific and must therefore be assessed in relation to the particular decision, at the time the decision needs to be made, and not the person's ability to make decisions generally.

This area is specifically helpful to people because it clarifies that every adult has the right to make their own decisions and are assumed to have the mental capacity to do so, regardless of any diagnosis such as dementia, learning disability or mental illness etc. All adults have the same rights as all other people in society, but some may need support to make their decisions known.

Some people will lack the mental capacity to make some decisions and so those decisions will have to be taken for them. This is why in those situations, an assessment must be made for each decision - because people do not lose all rights to make all decisions.

This will have profound implications for 2 million people with dementia, learning disability, mental health or head injuries and over 6 million carers.

Some Key Features of the new Act

A new court of protection
A broader power of attorney, called 'lasting power of attorney'
A new 'Independent Mental Capacity Advocacy Service'
New offence of wilfully neglecting or ill-treating a person who lacks capacity (arrestable offence with up to 5 years imprisonment)

Implementation of the Act in Barking and Dagenham

Some parts of the Act came into force on 1 April 2007. One of these requirements was for the Council to have commissioned an Independent Mental Capacity Advocacy Service. Here in Barking and Dagenham this service is provided by the following organisation:

Barking, Havering and Brentwood Mental Health User Group (HUBB)|

109 Rose Lane

Chadwell Heath

RM6 5NR

Tel: 020 8590 2666

Email: info@hubb.eclipse.co.uk|

HUBB is the statutory Independent Mental Capacity Advocacy provider for our residents.

When must the local authority or NHS consult an advocate?

The client must be over 16 and lack capacity as defined by the Act; and
Is without family or friends suitable to help in the decision-making process

To qualify for the Independent Mental Capacity Advocacy service the person must have an advocacy need in one or both of the following areas:

A decision about serious medical treatment, or the withdrawal of serious medical treatment e.g. chemotherapy, a surgical operation
A decision about a significant change of residence (for 28 days in hospital or more than 8 weeks in a care home)

An Independent Mental Capacity Advocacy may be instructed for Care reviews and certain Protection of Vulnerable Adult cases. Further information on mental capacity can be obtained from the Department for Constitutional Affairs via the follow links:

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