The Mental Capacity Act 2005 was introduced to protect the rights of individuals whose mental capacity is in under question, along with those who are without capacity. Primarily it focuses on clearing up any confusion regarding those who can make decisions for people who lack capacity, such as those who have suffered brain injury.
After receiving Royal Assent on 7th April 2005, the act came into effect on the first of October 2007. It clarifies procedures and practices which were possibly unclear under previous legislation.
'Mental capacity' refers to the ability to make decisions on a daily basis. These decisions could be of a general type - such as what to wear in the morning or what to have for breakfast. Decisions of a more serious nature include those regarding banking, housing or medical issues.
The act assumes that everyone has mental capacity unless proven otherwise - this is essential in protecting a person's interests from negative influences, or people who don't have the person's best interests at heart. In the instance of someone who has suffered brain injury, a range of people involved with the person will take part in coming to the conclusion that a person has no, or limited mental capacity. It states that any decisions made on behalf of a person must be in the person's best interests, that is that they relate closely to the person's values, beliefs, likes and dislikes.
When someone has suffered something such as a brain injury, it might be the case that they don't have any relations or familiar contacts which might be able to make such decisions. In this instance a Independent Mental Capacity Adviser (or IMCA) will be appointed to consider what is in the person's best interests.
If a person who has been in an accident, for example, and has suffered brain injury, they might have a certain degree of mental capacity - but believe that they may lose further capacity in the future. In this scenario they can nominate a lasting Power of Attorney, which would replace the Enduring Power of Attorney of someone who made decisions on their behalf.
Lasting Power of Attorney gives the designated person powers to organise housing, along with what contact and with whom the person lacking mental capacity has. They also make decisions regarding starting or continuing medical treatment which may be required following brain injury or other diseases. There are various restrictions to who can have these powers, notably they must be 18 or over, and cannot have been made bankrupt.
The Office of the Public Guardian was responsible for the Act, under the sponsorship of the Ministry of Justice. The Office of the Public Guardian is responsible for keeping those around mental disease or brain injury sufferers informed of any changes to public policy. This may include health workers, family members, social workers and other persons linked to a person who has, or may have limited mental capacity.
When someone suffers from an illness which affects mental capacity, it can be a harrowing time for the sufferer and their family. The act seeks to protect the freedoms of people who have had such a problem, and clarify the future, both short and long term for both parties.
Author Resource:-
Shaun Parker is a health writer with many years of experience in the medical industry. Find out more about brain injury at http://www.stewartslaw.com/
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