The Mental Capacity Act 2005 provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions. It makes it clear who can take decisions, in which situations, and how they should go about this. It enables people to plan ahead for a time when they may lose capacity.
Guidance on the Act has been provided in a statutory Code of Practice. This is available on the DCA website.
The Act is due to come into operation during 2007. Click here for a summary of how it applies to learning disability service providers.
Criminal Offence and IMCA service from 1 April 2007
On 1 April 2007 the new criminal offence of ill treatment or wilful neglect will come into force in England and Wales and the new Independent Mental Capacity Advocate (IMCA) service will become operational in England. The new criminal offence will apply to anyone caring for a person (of any age) who lacks capacity to make decisions for themselves. This includes family carers, healthcare and social care staff in hospitals and care homes and those providing care in a person’s home. The new offence carries a range of penalties from a fine to a prison sentence of up to five years.
Sections 1- 4 of the Act (the principles, assessing capacity and determining best interests) which are essential to how IMCAs will operate also comes into force but only in situations where an IMCA could be involved, and for the purpose of the criminal offence. Sections 1–4 of the Act will not apply in any other situations until October 2007.
The Code of Practice for the Act is due to be formally issued in late April, once it has completed the necessary Parliamentary processes. From this point it should be followed by those who must have regard to it in situations where an IMCA could be involved, or in relation to the criminal offence. It will also be available as a good practice guide for all those working with people who may lack capacity. Once the rest of the Act’s provisions come into force in October 2007, the Code will become statutory guidance for all of the Act.
For more detailed guidance on the new offence and the new IMCA service you should refer to the Code of Practice which is available online or in hard copy from The Stationery Office by calling 0870 600 5522 or emailing.