Mental Capacity Act
The Mental Health Act and the Mental Capacity Act explain your rights if you have a mental health condition, or lack the mental capacity to make certain decisions.
The Mental Health Act
The Mental Health Act 1983 (amended in 2007) is a piece of legislation that sets out the legal framework for providing care and treatment for people with a mental disorder, including use of compulsory powers.
It explains how someone with a mental disorder is cared for and treated under the Act. This includes:
- their assessment and treatment in hospital
- their treatment in the community
- their pathways into hospital, which can be civil or criminal
- their rights, including the right of appeal
For information about the Mental Health Act see this article.
The Mental Capacity Act
The Mental Capacity Act 2005 (MCA) provides the legal framework for people over the age of 16 years who lack the mental capacity to make decisions for themselves.
The MCA explains who can make decisions on behalf of someone who cannot make decisions for themselves. It also explains how people who have mental capacity can make preparations for a time when they may lack mental capacity in the future.
The MCA includes a list of five principles that must be followed when applying the Act. This ensures that the person who may lack the mental capacity to make a decision is kept at the centre of the process. The MCA Code of Practice sets out the guidance that should be followed when using the MCA.
There are some situations where a person is legally entitled to the support of an advocate. This is called 'statutory advocacy'. Independent Mental Capacity Advocates (IMCAs) are specially trained to support certain people under the MCA. You can find out more about IMCAs and other advocacy support available in this article.
Power of Attorney (PoA) is a legal process for when a person (the ‘Donor’) gives another person or persons (the ‘Attorney’) the power to act on their behalf with regard to their property and financial affairs and/or health and welfare. See the article on Power of Attorney for more information.
A deputy is a legal term set out in the Mental Capacity Act 2005.
The Court of Protection makes decisions and appoints deputies to act on behalf of someone who is unable to make decisions about their personal health, finance or welfare. In most circumstances day to day health and welfare decisions can be made by applying the MCA, if someone lacks the mental capacity to make certain decisions. However, the court may decide to appoint a welfare deputy if there are difficult decisions that cannot be made without the court’s involvement. A property and affairs deputy might be appointed in order to make ongoing decisions about assets, property and larger amounts of savings.
The Deprivation of Liberty Safeguards (DoLS) 2007 are part of the Mental Capacity Act 2005 .
The safeguards apply to people over the age of 18 years who are accommodated in hospitals or registered care homes and who may lack the mental capacity to consent to their accommodation for the purposes of their treatment or care. The safeguards protect the right to physical liberty contained in Article 5 of the European Convention on Human Rights.
The DoLS legal framework sets out the processes that need to be followed before a Deprivation of Liberty can be legally authorised. The person subject to the authorisation then has the right to challenge their detention by applying to the Court of Protection.
For more information see the article on DoLS.
The Mental Capacity Act is a complex subject, which for some people might be hard to understand. Dorset Council have produced a helpful video guide to the key principles of the MCA. Please note the contact details at the end of the video are for Dorset Council. Visit this page for contact details for South Gloucestershire Council.
The Local Government Association have also produced an Easy Read guide to the MCA, which is available on their website.
There is also an Easy Read guide to the proposed changes to the MCA available on GOV.UK.
The MCA also protects adults who may be vulnerable to abuse and neglect and do not have the mental capacity to make certain decisions. It provides legal guidance for practitioners, families and safeguarding boards who support people who lack mental capacity to make certain decisions.
For more information about the policies and guidance used by professionals, see the South Gloucestershire Safeguarding Adults Board website.