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A new law called the Mental Capacity Act 2005 comes into force in two stages in 2007. The first stage will come into force on 1 April 2007 and its second stage will come into force on 1 October 2007.
The new law will affect anyone aged 16 or over who is unable to make some or all decisions. This could be because of:
- a learning disability
- mental health problems
- brain injury
- dementia
- alcohol or drug misuse, or
- side effects of medical treatment or any other illness or disability
The new law will help and support you if:
- you currently find it difficult to make decisions sometimes or all of the time, or
- you want to plan ahead in case you are unable to make decisions in the future
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The Mental Health Capacity Act is there to:
- strengthen the right of people to make their own decisions and to be supported to do so
- protect those who may lack capacity to make a particular decision
- set out in which situations other people can make decisions and act on your behalf if you are unable to do so
- make sure you are involved in decisions that affect you, and
- help resolve disputes
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The Mental Capacity Act is accompanied by a Code of Practice that provides more in-depth guidance for professional staff such as social workers. Our staff will be trained in the use of the Act and the Code of Practice for when they are supporting anyone who lacks capacity.
There are five key principles that our staff will follow:
- a person is legally able to make a decision for themselves unless it is shown that they are unable to make it
- a person will be supported as much as possible to make their own decisions before anyone concludes that they cannot make their own decisions
- a person will be allowed to make a decision that may seem to others to be an unwise or strange decision
- if a person lacks capacity to make a decision, any decisions or actions taken on their behalf will be taken in their best interests
- if the person making the decision has a variety of options, our staff will consider how they can decide or act in a way that will best support the freedoms and rights of the person
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The new Act gives a basic checklist of the sort of things our staff will consider:
- whether the decision can be delayed in case you are able to make the decision in the future
- whether other relevant information has been taken into account
- whether your wishes, feelings, values and beliefs have been considered
- whether the views of your family members, parents, carers and other people interested in your welfare have been considered, if this is practical and appropriate
- whether any decisions have been based merely on your appearance, age, medical condition, or behaviour
- whether people are being motivated by a desire to bring about your death or making assumptions about your quality of life if decisions are being made about treatment that is needed to keep you alive
Anything else that is relevant must be considered even if it is not included in the checklist.
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The 12 week consultation period in relation to the Mental Capacity Act 2005 deprivation of liberty safeguards draft Code of Practice for England and Wales and draft regulations for England began on 10 September and closes on 2 December.
The consultation documents are available electronically on the Ministry of Justice and Department of Health websites through the following links:
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There are several things you can do to prepare for the future, either by setting some decisions in advance or by letting people know what you would like to happen if you lose the capacity to make decisions. It can also be helpful for your family, future carers and for the people you have chosen to make decisions for you to have your wishes clearly outlined.
The new Act allows you to appoint someone else to make decisions for you in the future, should you lack capacity to do this yourself. From October 2007, you can appoint an attorney to make decisions about health and personal welfare decisions for a time when you might lack capacity.
More information can be found in the booklets below:
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You can also find out more from the following websites (please note that LCC is not responsible for the content of external websites):
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