Mental Capacity Act 2005 Overview

From WikiMentalHealth

The full text of the Act is available here: Mental Capacity Act 2005.

This overview page contains links to useful resources on the Mental Capacity Act 2005, which came into force on 1/10/07.

Contents 1 The provisions of the Act 2 Secondary legislation 2.1 Commencement orders 2.2 Deprivation of Liberty 2.3 IMCA 2.4 Research 2.5 Public Guardian and Court of Protection 2.6 Other 2.7 Legislation updates 3 Government bodies 4 Training materials 5 Summaries and updates 6 Recommended books

The provisions of the Act

The following pages explain some of the provisions of the Act:

• Advance decision
• Court of Protection
• Deprivation of Liberty Safeguards
• Enduring Power of Attorney
• Independent Mental Capacity Advocate service
• Lasting Power of Attorney
• Office of the Public Guardian
• Official Solicitor

See also:

• Bournewood gap bridged by Deprivation of Liberty Safeguards inserted into MCA 2005 (April 2009) - The Mental Health Act 2007 has made amendments to the Mental Capacity Act 2005 which are expected to come into force in April 2009. See also the Mental Capacity Act 2005 Code of Practice Deprivation of Liberty Safeguards supplement.

Secondary legislation

Commencement orders

• Mental Capacity Act 2005 (Commencement No.1) (Amendment) Order 2006 — This commencement order relates to the Mental Capacity Act 2005.

• Mental Capacity Act 2005 (Commencement No.1) (England and Wales) Order 2007 — SI 563/2007 is the second commencement order under the Mental Capacity Act 2005

• Mental Capacity Act 2005 (Commencement No.1) Order 2006 — SI 2006/2814 is the first commencement order under the Mental Capacity Act 2005.

• Mental Capacity Act 2005 (Commencement No.2) Order 2007 — SI 1897/2007 is the fourth commencement order under the Mental Capacity Act 2005

• Mental Capacity Act 2005 (Commencement) (Wales) Order 2007 — SI 856/2007 is the third commencement order under the Mental Capacity Act 2005.

• Mental Capacity Act 2005 (Transitional and Consequential Provisions) Order 2007 — In force 1/10/07.

• Mental Health Act 2007 (Commencement No. 2) Order 2007 — Official explanatory note: "This Order is the second commencement order made under the Mental Health Act 2007 and brings into force section 51 of that Act in relation to England and Wales. Section 51 makes a minor amendment to MCA 2005 s20(11)(a). It replaces the word “or” with “and”." In force 1/10/07.

The Act came fully into force on 1/10/07 (see Mental Capacity Act 2005 in-force dates for detail).

Deprivation of Liberty

• Health Care and Associated Professions (Miscellaneous Amendments and Practitioner Psychologists) Order 2009 (Commencement No 1 and Transitional Provisions) Order of Council 2009 — Yes, that is the real name. Among other over-complicated things, transitional arrangements relating to psychologist AMHPs and BIAs come into force on 1/7/09. Until 30/6/12, they can either be chartered psychologists (registered by the BPS) or psychologists registered by the HPC. It is expected that before the end of the transitional period the legislation will be amended to refer only to those registered by the HPC.

• Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person's Representative) (Amendment) Regulations 2008 — In force 3/11/08.

• Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person's Representative) Regulations 2008 — In force 3/11/08.

• Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative) (Wales) Regulations 2009 — In force 1/4/09 (subject to annulment).

• Mental Capacity (Deprivation of Liberty: Assessments, Standard Authorisations and Disputes about Residence) (Wales) Regulations 2009 — In force 1/4/09 (subject to approval).

• Mental Capacity (Deprivation of Liberty: Monitoring and Reporting; and Assessments - Amendment) Regulations 2009 — In force 1/4/09, subject to approval by resolution of each House of Parliament. Relates to (1) the role of the Care Quality Commission in monitoring schedule A1 and (2) two amendments relating to (a) insurance/indemnity of assessors, and (b) recovery of expenditure between local authorities.

• Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008 — In force 3/11/08.

• Mental Health Act 2007 (Commencement No. 10 and Transitional Provisions) Order 2009 — In force 1/4/09. This order brings into force the provisions in relation to IMHAs for England (they are already in force in Wales). It also commences the deprivation of liberty safeguards, and introduces transitional provisions: provided the applications are received on or before 30/4/09, 42 days (instead of 21) are allowed for completing assessments for a standard authorisation, and urgent authorisations last for 21 days (instead of 7); urgent authorisations given on or before 30/4/09 cannot be extended.

• NHS Bodies and Local Authorities Partnership Arrangements (Amendment) Regulations 2009 — These Regulations amend the NHS Bodies and Local Authorities Partnership Arrangements Regulations 2000 to include Schedule A1 to the Mental Capacity Act 2005 (the Mental Capacity Act Deprivation of Liberty Safeguards) as a function of NHS Bodies. This will enable primary care trusts to enter into formal partnership arrangements with local authorities. In force 1/4/09, immediately after the coming into force of the Mental Health Act 1983 (Independent Mental Health Advocates) (England) Regulations 2008

IMCA

• Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (Expansion of Role) Regulations 2006 — SI 2006/2883 affects MCA 2005 s35.

• Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (General) Regulations 2006 — These Regulations came into force (a) for the purpose of enabling the Secretary of State to make arrangements under section 35 of the Act, and for the purpose of enabling local authorities to approve IMCAs, on 1st November 2006, and (b) for all other purposes, on 1st April 2007.

• Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (Wales) Regulations 2007 — In force 1/10/07.

• Mental Health and Mental Capacity (Advocacy) Amendment (England) Regulations 2009 — These Regulations confirm that the activities of IMCAs and IMHAs are "regulated activities" for the purposes of the Safeguarding Vulnerable Groups Act 2006, and require them to have an enhanced criminal record certificate from 12/10/09. In force 12/10/09.

Research

• Mental Capacity Act 2005 (Appropriate Body) (England) (Amendment) Regulations 2006 — In force 31/1/07. Amends the commencement dates to 1/7/07 (from 1/2/07) and 1/10/07 (from 1/4/07) respectively.

• Mental Capacity Act 2005 (Appropriate Body) (England) Regulations 2006 — In force.

• Mental Capacity Act 2005 (Appropriate Body) (Wales) Regulations 2007 — In force 1/7/07 and 1/10/07.

• Mental Capacity Act 2005 (Loss of Capacity during Research Project) (England) Regulations 2007 — In force 1/7/07 and 1/10/07.

• Mental Capacity Act 2005 (Loss of Capacity during Research Project) (Wales) Regulations 2007 — In force 1/7/07 and 1/10/07.

Public Guardian and Court of Protection

• Court of Protection Fees (Amendment) Order 2009 — This Order amends the Court of Protection Fees Order 2007, which set out the fees to be charged for matters coming to the Court of Protection, by abolishing the fee for a certified copy of a document and providing for an additional circumstance under which fees may be exempted (i.e. if the relevant person is in receipt of income-related employment and support allowance). In force 1/4/09.

• Court of Protection Fees Order 2007 — In force 1/10/07.

• Court of Protection Rules 2007 — Rules for Court of Protection. In force 1/10/07.

• Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment) Regulations 2007 — In force 1/10/07.

• Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment) Regulations 2009 — These Regulations contain redesigned LPA forms. In force 1/10/09.

• Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 — In force 1/10/07.

• Mental Capacity Act 2005 (Transfer Of Proceedings) Order 2007 — In force 1/10/07.

• Public Guardian (Fees, etc) (Amendment) Regulations 2007 — In force 1/10/07.

• Public Guardian (Fees, etc) (Amendment) Regulations 2009 — These Regulations, in amending the Public Guardian (Fees, etc) Regulations 2007, amend the fees to be charged for the services provided by the Public Guardian: the LPA fee is reduced from £150 to £120; a new fee for EPA and LPA office copies is introduced; the Deputy Assessment fee is reduced to £100; the Deputy Supervision fees remain, with an additional level of supervision Type IIA attracting a £350pa fee.

• Public Guardian (Fees, etc) Regulations 2007 — In force 1/10/07.

• Public Guardian Board Regulations 2007 — In force 1/10/07.

Other

• Lord Chancellor (Transfer of Functions and Supplementary Provisions) (No.2) Order 2006 — SI 2006/1016 amends MCA 2005 s21, MCA 2005 s45, MCA 2005 s46, MCA 2005 s51, MCA 2005 s52, MCA 2005 s59, and MCA 2005 s65. In force 3 April 2006.

Legislation updates

For legislation updates, see:

• Search results for "Mental Capacity Act" on Statute Law Database

Government bodies

The following state bodies are responsible for implementing the Act:

• Ministry of Justice:

• Mental Capacity "what we do" page
• Mental Capacity "guidance" page

• Department of Health:

• Mental Capacity page. This contains links to the following three pages, which are updated fairly regularly:

• Mental Capacity Act 2005 page
• Independent Mental Capacity Advocate (IMCA) page
• Mental Capacity Act Deprivation of Liberty safeguards

• Welsh Assembly Government:

• Mental Capacity Act page

• Office of the Public Guardian:

• OPG website - This well-structured website contains the following sections: About the Public Guardian, Making arrangements for yourself, I have concerns for another person, Making decisions for someone else, Mental Capacity Act and Forms and booklets.

See also:

• Offices of Court Funds, Official Solicitor and Public Trustee website

Training materials

• Training for the Mental Capacity Act 2005 (DH)

• Mental Capacity Act 2005: training materials - "During May 2007 the Department of Health, in partnership with the Welsh Assembly Government and the Social Care Institute for Excellence (SCIE), is publishing five sets of training materials to support the implementation of the Mental Capacity Act 2005." (DH)

Summaries and updates

In addition to the official Mental Capacity Act 2005 Explanatory Notes, the following may be useful:

• Summary of the Act (DCA)

• Easy-read summary (DCA)

• Background and useful information (DCA)

• Social Care Institute for Excellence: MCA 2005 resources page

• MCA Update newsletter - published regularly by the Office of the Public Guardian.

• Edition 22 - July 2009

Recommended books

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