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Mental Capacity Act 2005
The Mental Capacity Act governs decision-making on behalf of adults, where they lose the capacity to make or communciate a decision at some point in their lives, or where the incapacitating condition has been present since birth. Examples include a learning disability, brain injury and mental health problems.
The key parts of the Act are Living Wills, Code of Conduct and Lasting Power of Attorney (LPA). A Living Will is when you can make a decision now, about treatment you would want in the future when you have lost capacity.
Code of Practice
The Act sets out the legal framework. The Code of Practice sets out guidance and information for those acting under its terms and applying its provision on a a daily basis. As there are many situations that can arise when caring or working with those who lack capacity, the Code of Practice aims to incorporates good practice along with the flexibility to apply the principles to the particular circumstances of the situation.
Key parts of the Act (Communication)
At the start of 2007 the Government announced that they were going to make alterations to the Code of Practice following consultation.
The Code of Conduct has been revised and now has its own section on communication (Chapter 3). This is a huge improvement from the Draft Code as it now recognises far better that there are other ways to communicate apart from verbal and written forms. Within various parts of the Code it makes reference to communication covering muscle movement, blinking, squeezing of a hand, use of technology etc. These ways of communication are not only mentioned in Chapter 3 but in other parts of the Code.
Also within the Chapter on communications there is more detail about the need to explore more extensively how to help someone to be able to communicate their own wishes, rather than doing it through someone else. So it is giving the individual power over their decisions.
The Code of Practice has taken on board better than the LPA the fact that other ways of communication need to be considered other than written and verbal.
The Code of Conduct has been revised and now has its own section on communication (Chapter 3). This is a huge improvement from the Draft Code as it now recognises far better that there are other ways to communicate apart from verbal and written forms. Within various parts of the Code it makes reference to communication covering muscle movement, blinking, squeezing of a hand, use of technology etc. These ways of communication are not only mentioned in Chapter 3 but in other parts of the Code.
Also within the Chapter on communications there is more detail about the need to explore more extensively how to help someone to be able to communicate their own wishes, rather than doing it through someone else. So it is giving the individual power over their decisions.
The Code of Practice has taken on board better than the LPA the fact that other ways of communication need to be considered other than written and verbal.
Lasting Power of Attorney
A LPA is when someone acts on your behalf to make decisions for you. There are two LPA forms which cover property and personal welfare. There can be five LPAs appointed for one person. Restrictions and conditions can be placed on the LPA. LPAs will be able to take all decisions about the persons welfare. They won’t be able to make decisions about life-sustaining treatment as this will be covered in the Living Wills. LPAs can not be made jointly or on behalf of someone as they need to have the capacity to do this. Any objection of an LPA would need to be made within five weeks.
An essential part of the process is to provide a statement of certificate provider (an independent person who certificates that the the person making the LPA understands what they are doing). The person signing the form will be independent from the LPA and have known them for at least two years. This could be someone of professional standing eg police officers, solicitors and teachers. It cannot be a family member or paid carer.
LPAs have to be registered with the Office of the Public Guardian (an office that will keep a list of LPAs). LPA forms can be obtained from here.
An essential part of the process is to provide a statement of certificate provider (an independent person who certificates that the the person making the LPA understands what they are doing). The person signing the form will be independent from the LPA and have known them for at least two years. This could be someone of professional standing eg police officers, solicitors and teachers. It cannot be a family member or paid carer.
LPAs have to be registered with the Office of the Public Guardian (an office that will keep a list of LPAs). LPA forms can be obtained from here.
Key parts of the Act (Communication)
At the start of 2007 The Department of Health republished the LPA forms and guidance following a consultation that we responded to. The original LPA forms didn’t make the points around communication problems that people living with MND have.
The LPA forms have been improved as there have been amendments made for someone that is unable to communicate a message in written form. The LPA forms now allows for a mark to act as consent when the applicant signs the form and there is now a section that allows someone else to sign the form for the applicant. However, this means that the independence of someone with MND will be lost. For the LPA there will be a national register.
The LPA forms have been improved as there have been amendments made for someone that is unable to communicate a message in written form. The LPA forms now allows for a mark to act as consent when the applicant signs the form and there is now a section that allows someone else to sign the form for the applicant. However, this means that the independence of someone with MND will be lost. For the LPA there will be a national register.
When will this be effective from?
Many parts of the MCA are due to be delayed from April 2007 to October 2007. The delay has occurred due to the complex nature of the Act particularly around the Code of Practice and Court of Protection.
The parts of the Code that relate to IMCA will be in force from April. The parts of the Code that relate to the rest of the Act (new court of protection, public guardian, the office of the public guardian and LPA) will be in force from October and parts of the code that aren’t covered by this will be in force from April.
The parts of the Code that relate to IMCA will be in force from April. The parts of the Code that relate to the rest of the Act (new court of protection, public guardian, the office of the public guardian and LPA) will be in force from October and parts of the code that aren’t covered by this will be in force from April.
What has the MND Association done?
We have responded to the Government’s consultations on the above.
View our response on LPA - LPA Consultation (47 kb)
View our response on the Draft Code of Practice - code of practice (39 kb)
