The Mental Capacity Act: A month of protection from revolutionary law

The Mental Capacity Act 2005 (MCA), which was brought into force on October 1st 2007 in England and Wales, provides a thorough structure for decision-making on behalf of people aged 16 and over who lack the mental capacity to make decisions for themselves.

Although it provides people who are now of sound mind many options of setting up ways in which they can stipulate who is allowed to make decisions on their behalf should they lose their mental faculties, the new Act has not been without its dissenters. There were concerns about the way in which it would be implemented and that people would have to be careful that it was not open to abuse, although after a month of being in place, the mental health services seem to have found that all has run smoothly.

The Act, which applies to all decisions taken on behalf of people who, either permanently or temporarily, are unable to make decisions for themselves, covers all decisions that influence their life, from simple everyday choices to serious medical treatment options.

A person is deemed to lack capacity if at the time of the decision process, he or she can not decide or communicate due to an "impairment of, or a disturbance in the functioning of, the mind or brain", the Act states.

This potentially affects people suffering from mental illness, learning disabilities, dementia, Alzheimer's disease, brain damage or intoxication.

People, such as doctors, involved in working with people who have the potential to lack capacity will have to be well-trained to judge whether people are or are not mentally capable at the time. If the impairment is temporary and the decision can be delayed, then doctors should decide to wait until capacity is restored.

One of the major innovations of the MCA is the introduction of Independent Mental Capacity Advocates (IMCAs), which gives those who are especially vulnerable and lack capacity an independent agent to care for their welfare on serious decisions. These will come into play in such cases where an incapable adult needs a decision made about serious medical treatment or housing and has no family members or lawyers to speak on their behalf.

Another key feature is the replacement of the Enduring Power of Attorney (EPA) by the Lasting Power of Attorney (LPA), which allows people to nominate substitute decision-makers should they become incapable in future.

Martin Beames, a solicitor at law firm Rawlison Butler LLP, explained: "The new LPA will let you choose who you want to be responsible for looking after your finances or your personal welfare in the event that you cannot decide for yourself.

"The new form provides protection from potential abuse - perhaps from overbearing relatives - as it must be signed in the presence of someone with experience of dealing with such matters, for example a doctor, a lawyer or a social worker."

He added: "Another important difference to the previous EPA is that it enables you to nominate a potential replacement attorney which you were not able to do previously."

The new Office of the Public Guardian (OPG) has been set up to supervise the implementation of aspects of the MCA.

Justice minister Bridget Prentice said: "The OPG brings legal certainty to some of the most vulnerable people in society. It will monitor the actions of people looking after the affairs of people who lack capacity and ensure that decisions made for them are in their best interests.

"Issues around mental capacity will touch most of our lives at some stage. It is only right that there are safeguards in place to ensure that where care is needed, it is given in the best interests of the person being cared for. It is also important that both carers and those cared for know what is expected of them."

Fundamentally, the Act is in place to ensure that the best interests and wishes of incapable patients are taken into account when decisions need to be made, which may be why it seems that a month down the line, the MCA is still being welcomed by those with an interest in mental health.

Toby Williamson, associate head of service improvement and workforce development at the Mental Health Foundation, commented on the revolutionary Act: "For the first time in England and Wales there is a clear legislative framework setting out principles, procedures and safeguards to support people who may experience difficulties in making decisions for themselves because of illness, injury or disability, including people with mental health problems.

"The Act has been warmly welcomed by many different groups - professionals, carers and service users many of whom have been campaigning for several years for this type of progressive, rights-based legislation and it represents a good example of Government and stakeholders working constructively together in partnership."

"Parts of the Act, including the new IMCAs, began in April and it is very encouraging to see the uptake of the IMCA service to enable professionals to make better decisions on behalf of people who lack capacity," Mr Williamson continued.

"Although it is still early to say, the Act should help better decision-making among all staff and services working with people who may lack capacity. While health and social care services should know the importance of making staff aware and providing training, there is also the recognition that much of the Act should reflect or build upon existing good practice," he added.

Acknowledging the fact that the Act might sometimes be challenging to put into practice, he concluded: "The important point is that there is now a legal framework where problems or disagreements can be properly resolved and the rights of the individual protected."