Mental Capacity Implementation Programme Mental Capacity Act 2005 Paul Gantley National Implementation Programme Manager DH / CSIP

When is it being implemented? Royal Assent – April 2005 IMCA service in England; criminal offence; Code of Practice – April 2007 All of the Act – October 2007

Who Is Affected? Mental capacity could affect anybody Over 2 million people in England and Wales lack mental capacity to make some decisions for themselves: learning disabilities, dementia, mental health difficulties, brain injury Up to 6 million family carers, carers, health and social care staff

Principles of the Act (Section 1) Assume a person has capacity unless proved otherwise Do not treat people as incapable of making a decision unless you have tried all you can to help them Do not treat someone as incapable of making a decision because their decision may seem unwise Do things or, take decisions for people without capacity in their best interests Before doing something to someone or making a decision on their behalf, consider whether you could achieve the outcome in a less restrictive way

What the Act does I Sets out a framework for assessing capacity – decision specific – a functional test – no discrimination based on age, condition, behaviour etc. Sets out a best interests checklist Integrates current common law into statute Protects those who do an act in connection with care or treatment from liability if in best interests of the person lacking capacity.

What the Act does II Permits restraint / restriction to prevent harm within certain constraints. Creates a) personal welfare and b) property and affairs Lasting Powers of Attorney Creates new Court of Protection – that can make declarations, single orders and appoint a) personal welfare and b) property and affairs deputies Creates new Office of the Public Guardian to register attorneys and supervise deputies Creates new criminal offence Difference between acts and decisions for health and social care staff and for attorneys and deputies

What the Act doesn’t do Permit deprivation of liberty Abolish existing EPA’s – they continue Abolish existing receivers – they automatically convert to deputies Doesn’t trump Part IV of the Mental Health Act 1983

Planning Ahead for a Time When You Think You Might Lack Capacity – you can create: 1.Lasting powers of attorney 2. Advance decisions to refuse treatment 3.But also by making your wishes and feelings known decision makers will have to consult with those “caring for the person or interested in his welfare” as part of best interests checklist

Research Act sets out new safeguards for many types of research involving people who lack capacity Act balances desire for people without capacity to benefit from properly conducted research with the need for strict safeguards Act says the interests of the person are more important than the interests of science and society

The Independent Mental Capacity Advocate (IMCA) - for who and when? Who? - Extra safeguard for particularly vulnerable people in specific situations Who? - People with no-one to consult (other than paid carers) When? – serious medical treatment; care home moves But note the Regulations now agreed by Parliament - Expansion of the role to reviews of accommodation; and abuse cases; where LA or NHS body may instruct Services now being commissioned by LA’s in England

The pilots to date (since Jan ’06) Mainly uninstructed advocacy Involved in care home closures, ward closures, resettlement in the community, serious medical treatments, hospital discharges, working with the Official Solicitor Advocacy Matters in Warrington; Pohwer in Hertfordshire; Advocacy Partners in Surrey; Cambridge House in London; Speaking Up in Cambridge; Dorset Advocacy in Dorset; Skills for People in Newcastle. Evaluated by Cambridge University – on DH website:

Key Forthcoming Dates / Action Points Full implementation of MCA by October 2007 Code to be laid in Parliament in February 2007; made and available from April 2007 Inspection and monitoring post implementation – revision of NMS Amended MH Act will include the Bournewood solution – an amended MCA that permits deprivation of liberty from April 2008?

Housing issues Who can assess capacity? (In) capacity and tenancies? DH sponsored events and guidance CSIP sponsored events and guidance Difference between acts and decisions for health and social care staff and attorneys and deputies