Mental Capacity Act

This page is dedicated to providing resource information on the mental capacity act

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External Document Downloads

Government Website – Mental Capacity Act 2005

May16 – (Crown copyright) Mental Capacity Act 2005 Code of Practice from www.gov.uk – Click here to leave this site and be taken to the .gov.uk web site where the full document can be viewed and downloaded.

A snippet from the PDF downloadable file can be found below:

The Mental Capacity Act 2005, covering England and Wales, provides a statutory framework for people who lack capacity to make decisions for themselves, or who have capacity and want to make preparations for a time when they may lack capacity in the future. It sets out who can take decisions, in which situations, and how they should go about this. The Act received Royal Assent on 7 April 2005 and will come into force during 2007.

The legal framework provided by the Mental Capacity Act 2005 is supported by this Code of Practice (the Code), which provides guidance and information about how the Act works in practice. Section 42 of the Act requires the Lord Chancellor to produce a Code of Practice for the guidance of a range of people with different duties and functions under the Act. Before the Code is prepared, section 43 requires that the Lord Chancellor must have consulted the National Assembly for Wales and such other persons as he considers appropriate.  The Code is also subject to the approval of Parliament and must have been placed before both Houses of Parliament for a 40-day period without either House voting against it. This Code of Practice has been produced in accordance with these requirements.

The Code has statutory force, which means that certain categories of people have a legal duty to have regard to it when working with or caring for adults who may lack capacity to make decisions for themselves. These categories of people are listed below.

How should the Code of Practice be used?

The Code of Practice provides guidance to anyone who is working with and/ or caring for adults who may lack capacity to make particular decisions. It describes their responsibilities when acting or making decisions on behalf of individuals who lack the capacity to act or make these decisions for themselves. In particular, the Code of Practice focuses on those who have a duty of care to someone who lacks the capacity to agree to the care that is being provided.

Who is the Code of Practice for?

The Act does not impose a legal duty on anyone to ‘comply’ with the Code – it should be viewed as guidance rather than instruction. But if they have not followed relevant guidance contained in the Code then they will be expected to give good reasons why they have departed from it. Introduction 1 Mental Capacity Act Code of Practice 2 Certain categories of people are legally required to ‘have regard to’ relevant guidance in the Code of Practice. That means they must be aware of the Code of Practice when acting or making decisions on behalf of someone who lacks capacity to make a decision for themselves, and they should be able to explain how they have had regard to the Code when acting or making decisions.

The categories of people that are required to have regard to the Code of Practice include anyone who is:

  • an attorney under a Lasting Power of Attorney (LPA) (see chapter 7)
  • a deputy appointed by the new Court of Protection (see chapter 8)
  • acting as an Independent Mental Capacity Advocate (see chapter 10)
  • carrying out research approved in accordance with the Act (see chapter 11)
  • acting in a professional capacity for, or in relation to, a person who lacks capacity working
  • being paid for acts for or in relation to a person who lacks capacity.

The last two categories cover a wide range of people. People acting in a professional capacity may include:

  • a variety of healthcare staff (doctors, dentists, nurses, therapists, radiologists, paramedics etc)
  • social care staff (social workers, care managers, etc)
  • others who may occasionally be involved in the care of people who lack capacity to make the decision in question, such as ambulance crew, housing workers, or police offi cers.

People who are being paid for acts for or in relation to a person who lacks capacity may include:

  • care assistants in a care home
  • care workers providing domiciliary care services, and
  • others who have been contracted to provide a service to people who lack capacity to consent to that service.

However, the Act applies more generally to everyone who looks after, or cares for, someone who lacks capacity to make particular decisions for themselves. This includes family carers or other carers. Although these carers are not legally required to have regard to the Code of Practice, the guidance given in the Code will help them to understand the Act and apply it. They should follow the guidance in the Code as far as they are aware of it.

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