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Mental capacity & safeguarding

The Mental Capacity Act 2005

The Mental Capacity Act 2005 (MCA) came into practice in 2007 but NSAB recognises that it remains a piece of law that is often confused with the Mental Health Act or used to make generalisations about an individual’s ability to understand situations or the actions that they take. There is also a Code of Practice which was published in 2013 which gives more detail on how to apply the law in day to day work.

Here we have developed some guidance to support multi-agency understanding:

NSAB MCA guidance - links with safeguarding adults

A new MCA toolkit has also been launched from Bournemouth University in October 2021, created with the Burdett Trust for Nurses.

It’s a free online learning tool to support nurses and other practitioners in their understanding and duties under the Human Rights Act and MCA. It is easy to use and helps you to think through the process in a structured way.

You can access it here:

Mental Capacity Toolkit

 

"The MCA is mainly concerned with people who are unable to make decisions, whether wise or unwise. The MCA is not about the right to make decisions more generally. It tells social workers and others how to recognise when a person lacks capacity and how they may make a decision for the person which will incur no more liability than they would have incurred if the person had capacity and consented. Our right to make whatever decision we wish, provided it is not prohibited or otherwise legally overridden, is not given to us by the MCA but is a fundamental constitutional right."

Community Care article June 2019 How misinterpretation of ‘unwise decisions’ principle illustrates value of legal literacy for social workers

Lasting Power of Attorney (LPA)

There are two types of Lasting Power of Attorney (LPA):

  • LPA for Health and Welfare
  • LPA for Property and Financial Affairs

These are legal documents where one person has given another person the legal power to make decisions on their behalf, in the event the first person no longer has the mental capacity to make their own decisions. 

There is lots more information on the government website:

 Make, register or end a lasting power of attorney

To check if someone holds LPA for another person, and also to check what type of LPA:

Check if a person has appointed an LPA

 If you have a serious concern that someone holding LPA is not acting in the best interest of an adult at risk, causing harm or neglect, raise your concern with the Office of the Public Guardian (OPG).

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