Mental Capacity Code of Practice

In April 2007 the Department of Health introduced a new Mental Capacity Advocate service. At the same time, a new code of practice was introduced which makes it clear that the ill-treatment or neglect of a person lacking mental capacity is a criminal offence.

The changes are the result of the Mental Capacity Act 2005, which aims to give additional protection to vulnerable people over the age of 16 who are not able to make their own decisions.

The Act is based on five key principles:

1. Every adult has the right to make their own decisions unless it can be demonstrated that they lack the mental capacity to do so;
2. A person must be given all practical help to make a decision before it can be concluded that they lack capacity to do so;
3. The fact that a decision may seem to be unwise is not necessarily an indication that the person lacks mental capacity;
4. Any decision made by a third party for the person lacking mental capacity must be in that person’s best interests; and
5. Decisions made for persons lacking mental capacity must be those which least fetter their rights and freedoms.

One of the most important elements in the new regime is that any professional who provides care or treatment is required to take account of the views of anyone nominated by the person who lacks mental capacity, their carers, or anyone appointed under a Lasting Power of Attorney.

Anyone who is involved in looking after a person who lacks mental capacity will be expected to be aware of the code of practice and must consider it when making any decision concerning that person.

The Mental Capacity Advocate service will appoint an independent Mental Capacity Advocate to support persons lacking mental capacity who have no one to speak for them.