The Mental Capacity Act in practice.
The Adults with Incapacity (Scotland) Act 2000 was one of the first laws established under the new Scottish Parliament formed in 1999, and predates the Mental Capacity Act by five years. While the two Acts do share a lot in common, there are also some key differences it is important to be aware of.
Testamentary Capacity refers to an individual’s legal mental capacity to create or amend their Will. In cases where there is either a reasonable belief that the individual may lack capacity to complete their Will, or that there may be challenges to the Will in future, it is best practice to request an Independent Mental Capacity Assessment to safeguard the decision.
An Independent Mental Capacity Advocate (IMCA) is a statutory role under the Mental Capacity Act (2005) that supports a person who lacks capacity to express their wishes around a particular decision.
The Office of the Public Guardian (OPG) has published updated guidance for lay deputies and what they must do to meet the standards of the role. These can be found on the Government website, where there are also additional standards for public authority figures, and professionals who may also be assigned the role of deputy.
Deprivation of Liberty Safeguards (DoLS) is a vital safeguarding process designed to prevent unlawful detention and disproportionate restrictions placed on individuals. It also protects human rights and places the individual at the centre of their care, where no one size fits all.
The causative nexus is an essential part of any mental capacity assessment as it provides a clear rationale for whether the person being assessed has capacity to make a specific decision.
Lasting Power of Attorney (LPA) enables a person to make the advanced decision to assign a person (or persons) to help make decisions, or to make decisions on their behalf if unable to in the future. This role is set out in the Mental Capacity Act and provides greater legal rights than the position of Next of Kin.
Mental Capacity can be impacted by an impairment or disturbance of the brain that directly affects cognitive functioning. In today’s blog we look at a selection of short-term and long-term conditions that can be a direct factor.
In everyday healthcare practice we are directed by legislation and best practice guidance to gain informed consent for medical interventions, care plans and, broadly speaking, any professional interaction. This includes consent to be photographed, which in years gone by would have included use on medication charts (MARS sheets), care plans and care provider notice boards. In more recent years, it also includes the use of photos shared on social media, email and messaging services such as WhatsApp.
From the 1st January 2023, there will be a new process for applications surrounding the Court of Protection property and affairs deputyship.