Mental Capacity Act FAQs
- What is the role of the Court of Protection and court-appointed deputies?
- What does the Act say about advance decisions to refuse treatment?
- What is the new Independent Mental Capacity Advocate service and how does it work?
- What is the role of the Court of Protection and court-appointed deputies?
The Act sets up a specialist court, the Court of Protection, to deal with decision-making for adults (and children in a few cases) who may lack capacity to make specific decisions for themselves.
The new Court of Protection replaces the old court of the same name.
The Court of Protection has powers to:
- decide whether a person has capacity to make a particular decision for themselves
- make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions
- appoint deputies to make decisions for people lacking capacity to make those decisions
- decide whether an LPA or EPA is valid
- remove deputies or attorneys who fail to carry out their duties
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- What does the Act say about advance decisions to refuse treatment?
An advance decision enables someone aged 18 and over, while still capable, to refuse specified medical treatment for a time in the future when they may lack the capacity to consent to or refuse that treatment.
An advance decision to refuse treatment must be valid and applicable to current circumstances. If it is, it has the same effect as a decision that is made by a person with capacity: healthcare professionals must follow the decision.
Healthcare professionals will be protected from liability if they:
- stop or withhold treatment because they reasonably believe that an advance decision exists, and that it is valid and applicable
- treat a person because, having taken all practical and appropriate steps to find out if the person has made an advance decision to refuse treatment, they do not know or are not satisfied that a valid and applicable advance decision exists
People can only make an advance decision under the Act if they are 18 or over and have the capacity to make the decision.
They must say what treatment they want to refuse, and they can cancel their decision - or part of it - at any time.
If the advance decision refuses life-sustaining treatment, it must:
- Be in writing (it can be written by a someone else or recorded in healthcare notes)
- be signed and witnessed
- state clearly that the decision applies even if life is at risk
To establish whether an advance decision is valid and applicable, healthcare professionals must try to find out if the person:
- Has done anything that clearly goes against their advance decision
- Has withdrawn their decision
- Has subsequently conferred the power to make that decision on an attorney, or
- Would have changed their decision if they had known more about the current circumstances
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- What is the new Independent Mental Capacity Advocate service and how does it work?
The Act set up a new IMCA service that provides safeguards for people who:
- lack capacity to make a specified decision at the time it needs to be made
- are facing a decision on a long-term move or about serious medical treatment and
- have nobody else who is willing and able to represent them or be consulted in the process of working out their best interests.
Also, IMCAs may be involved in other decisions, concerning:
- a care review, or
- an adult protection case.
In adult protection cases, an IMCA may be appointed even where family members or others are available to be consulted.
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