The Mental Capacity Act 2005 and decision-making: advocacy

This article continues the series into the content and implications of the Mental Capacity Act 2005, which looks at the requirement to provide an independent mental capacity advocacy service in specified situations. The Act requires NHS organizations and local authorities to arrange for the appointment of an independent mental capacity advocate in the following situations: where serious medical treatment is being considered for a person who is incapable of making his or her own decisions, and where accommodation is being arranged by an NHS organization, or by a local authority, for a person who lacks the requisite mental capacity to give consent. Additional situations have been added by regulations and these include where there is a review of the accommodation arrangements (Reg. 3) or where an NHS body or local authority propose to take protective measures in relation to a person who lacks the requisite mental capacity (Reg. 4). The statutory duty does not apply if there is a person whom it would be appropriate to consult on a person's best interests, except in the case of protective measures being taken. The article considers the powers and the duties of the independent mental capacity advocate and applies the legal provisions to a practical situation.