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Mental Capacity Act

What is the Mental Capacity Act?

The Mental Capacity Act (MCA) came into force in England and Wales during two stages in 2007.  The MCA applies to everyone who works in health and social care and is involved in the care, treatment or support of people aged 16 and over who live in England and Wales and who are unable to make all or some decisions for themselves.

We all have problems making decisions from time to time, but the Mental Capacity Act is about more than that. It is specifically designed to cover situations where someone is unable to make a decision because the way their mind or brain works is affected, for instance, by illness or disability, or the effects of drugs or alcohol. 

A lack of mental capacity could be due to:

  • a stroke or brain injury. 
  • a mental health problem.  
  • dementia.  
  • a learning disability.  
  • confusion, drowsiness or unconsciousness because of an illness or the treatment for it. 
  • substance misuse.    

It introduces important new safeguards for people who lack capacity and the people who work with, support or care for them.

It is underpinned by five key principles which must inform everything you do when providing care or treatment for a person who lacks capacity. 

The Act is accompanied by a Code of Practice which provides guidance as to how it should work on a day-to-day basis.

How will it affect family, friends and unpaid carers?

The Mental Capacity Act is relevant to anyone who has a relative or friend who may lack capacity.

  • It clarifies the process for caring for people who may lack capacity. 
  •  It clarifies how decisions should be made for your relative or friend if they are unable to make those decisions for themselves. 
  • It sets out when you should be consulted about decisions made on behalf of your relative or friend. 
  • It sets out how your relative or friend is protected when others are making decisions on their behalf.    

The Act applies whenever decisions are being made on behalf of a person who lacks capacity to make a particular decision for themselves. This includes any assessment of their need for treatment, services or support. The Act provides a clear legal framework for dealing with mental capacity issues.

Independent Mental Capacity Advocate (IMCA) Service

The Independent Mental Capacity Advocate (IMCA) service was made available in England from April 2007 and in Wales from October 2007.
The duties of an IMCA are to:

  • support the person who lacks capacity and represent their views and interests to the decision-maker;  
  • obtain and evaluate information - an IMCA can talk to the patient in private and examine, and where appropriate, take copies of health and social care records such as clinical records, care plans or social care assessment documents; 
  • as far as possible, ascertain the person's wishes and feelings, beliefs and values;
  • ascertain alternative courses of action; 
  • obtain a further medical opinion, if necessary;  
  • prepare a report for the person who instructed them. If an IMCA disagrees with the decision made, they can also challenge the decision maker.   

Advocacy Experience provides a joint IMCA service for Liverpool and Sefton. Based in the Neuro Support Centre on Norton Street, the new service through Advocacy Experience was officially launched in November 2007. 

Useful guides