Mental Capacity Act
Safeguards
The Act creates important safeguards:
- A new Court of Protection that has the power to make declarations about whether someone lacks capacity, make orders or appoint deputies to act and make decisions on behalf of someone who lacks capacity. On many occasions there may be other ways of dealing with difficult situations without having to go to Court, such as via existing complaints procedures.
- A new public official called the Public Guardian who has several duties under the Act including registering Lasting Power of Attorneys and supervising court-appointed deputies. The Public Guardian is supported in carrying out these duties by a new Office of the Public Guardian (OPG) which replaces the existing Public Guardianship Office (PGO).
- A new criminal offence of ill treatment or wilful neglect of a person who lacks capacity.
The Code of Practice, published in April 2007, explains how the new law works. The Act says professionals and paid carers, among others, must have regard to the Code.
Deprivation of Liberty Safeguards
The Deprivation of Liberty Safeguards (formerly known as the Bournewood Safeguards) were introduced into the Mental Capacity Act 2005 by the Mental Health Act 2007, which received Royal Assent in July 2007. They will become a statutory obligation on 1 April 2009.
The safeguards will prevent arbitrary decisions that deprive vulnerable people of their liberty by providing processes of application, assessment, authorisation and review when it is necessary to deprive a person of liberty, and providing them with representation and rights of appeal.
The Government estimates that the majority of people subject to the procedures will be:
- Older people with the range of dementias
- People with acquired brain injury
- People with significant learning disabilities.
The safeguards cover people in hospital and in care homes registered under the Care Standards Act 2000 whether placed in public or private arrangements. Hospitals, primary care trusts, care homes and local authorities will be required to undertake new responsibilities and processes when a service user who lacks capacity is being assessed for and subsequently deprived of their liberty.
The Department of Health has produced a Code of Practice to supplement the main Mental Capacity Act: Mental Capacity Act: Code of Practice|
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