Mental capacity

The Mental Capacity Act 2005 was partially implemented in April 2007 and came fully into force on 1 October 2007. The law sets out how decisions should be made where people lack the ability to make a decision for themselves - known as "lacking capacity". The law is based on the principle that people must be enabled to make their own decisions whenever possible, and should be supported to do so. It introduces important new measures for others to make substitute decisions where this is not possible. Such decisions might relate to financial, residential and healthcare issues. Advance directives, which record the wishes of people regarding their care and treatment while they have capacity to be used if they lose capacity, have legal status under the law.

The Act creates a new framework to safeguard, monitor and provide a judicial forum for the new regime. There will be a new, extended role for the Court of Protection, supported by a new Office of Public Guardian, which will also oversee formal structures of substitute decision-making. An Independent Mental Capacity Advocacy service will provide advocates to represent the most vulnerable people in major welfare decisions. A new offence has been created for the ill-treatment or neglect of persons in the care of care homes or hospitals, which will provide better access to justice for people who lack capacity.

There are strong connections between mental incapacity and mental ill health. The ability to make decisions can be affected by learning disability, mental health problems, brain injury and by medical conditions, such as Alzheimer's. The incidence of mental ill health is higher among people who are likely to lack capacity, such as older people and adults with learning difficulties.

Mind has been involved in consultations relating to implementation of the Mental Capacity Act, through the Making Decisions Alliance, a consortium of interested organisations.

How the Mental Capacity Act will work

Bournewood Gap

Advance directives

For more information contact: Anna Bird a.bird@mind.org.uk