Mental Capacity Law

Question 1

Mental Capacity Act 2005

Answer 1

Generally only affect people 16y+ and provides statutory framework to empower and protect people who may lack capacity to make some decisions for themselves

Assessment of capacity is a ‘decision specific’ and ‘time specific’ test

Question 2

5 key principles of MCA 2005

Answer 2

1. Presumption that a person has capacity
2. Support for those who lack capacity in making decisions
3. Unwise decisions (cannot assume lacks capacity if a decision appears unwise)
4. Best interests (action / decision made on someone’s behalf must be in their best interest)
5. And that action / decision must be the least restrictive option

Question 3

Mental capacity law in the 4 nations

Answer 3

• England and Wale: Mental capacity act 2005
• Scotland: Adults with Incapacity Act 2000
• NI: Mental Capacity Act 2016

Question 4

When making decisions for vulnerable adults - what is important to determine?

Answer 4

• what decision needs to be made?
• what are the consequences of the decision?
• is there impairment / disturbance in functioning of persons kind or brain ?
• if so, does this mean that person is unable to make that particular decision?

Question 5

Lasting power of attorney - when can they be appointed?

Answer 5

• when the person has capacity

Otherwise - court appointed deputy

Question 6

Lasting power of attorney - what do they have responsibility for?

Answer 6

Individuals personal welfare allowing decisions to be made about consent to, or refusal of, medical examination and treatment at a time when the individual may have lost capacity

Question 7

Lasting power of attorney - where do they have to be registered?

Answer 7

The Office of the Public Guardian

Question 8

What is a court appointed deputy?

Answer 8

Can be given authority to make decisions about health and welfare on behalf of someone who lacks mental capacity.

2 types:

• Properly and financial affairs deputy
• Personal welfare deputy

Have to be 18y+

Question 9

What is an Independent Medical Capacity Advisor (IMCA)

Answer 9

• may be appointed to support someone lacking capacity who has no one else to support them
• must be consulted if doctor / trust considering providing or withholding serious medical treatment and IMCA can challenge the decision

Question 10

What is an advance decision?

Answer 10

• creation of statutory rules, with safeguards, to allow individual to make a decision in advance to refuse treatment should they lack capacity in the future
• where decisions are related to life-sustaining treatment must be in writing, signed and witnessed, including an express statement to say that the decision stands ‘even if life is at risk’

Question 11

Criminal offence in MCA 2005

Answer 11

Ill treatment or wilful neglect of a person who lacks capacity (up to 5 years prison)