Mental Capacity Act 2005

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The Mental Capacity Act 2005[1]
Long title An Act to make new provision relating to persons who lack capacity; to establish a superior court of record called the Court of Protection in place of the office of the Supreme Court called by that name; to make provision in connection with the Convention on the International Protection of Adults signed at the Hague on 13 January 2000; and for connected purposes.
Chapter 2005 c 9
Territorial extent England and Wales, except that paragraph 16(1) of Schedule 1 and paragraph 15(3) of Schedule 4 extend to the United Kingdom and, subject to any provision made in Schedule 6, the amendments and repeals made by Schedules 6 and 7 have the same extent as the enactments to which they relate.[2]
Dates
Royal Assent 7 April 2005
Text of statute as originally enacted
Revised text of statute as amended

The Mental Capacity Act 2005 (c 9) is an Act of the Parliament of the United Kingdom applying to England and Wales. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves.[3]

Key features of the Act[edit]

The five statutory principles[edit]

The five principles are outlined in the Section 1 of the Act. These are designed to protect people who lack capacity to make particular decisions, but also to maximise their ability to make decisions, or to participate in decision-making, as far as they are able to do so.

1. A person must be assumed to have capacity unless it is established that he/she lacks capacity.

2. A person is not to be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success.

3. A person is not to be treated as unable to make a decision merely because he/she makes an unwise decision.

4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his/ her best interests.

5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.[4]

Summary of other key elements of the Act[edit]

  • The Act makes provision for people to plan ahead for a time when they may need support. This introduces advanced decisions to refuse treatment.
  • The Act is decision specific in that it deals with difficulties a person may have with a particular issue.
  • The Act upholds the principle of Best Interest for the individual concerned.
  • A Court of Protection will help with difficult decisions. The Office of the Public Guardian (formerly Public Guardianship Office), the administrative arm of the Court of Protection, will help the Act work.
  • An Independent Mental Capacity Advocate (IMCA) service will provide help for people who have no intimate support network.
  • The Act makes it a criminal offence to wilfully neglect someone without capacity.
  • The Act generally applies only to those over the age of 16 years, although may apply to some younger people if it is supposed that their capacity will continue to be impaired into adulthood.

Section 68 - Commencement and extent[edit]

The following orders have been made under this section:

Timetable of new features[edit]

The new measures that the Act introduced were:

April 2007

October 2007

Amendments[edit]

In response to the ruling by the European Court of Human Rights in HL v UK (2004) (the 'Bournewood' judgment) the Act was amended by the Mental Health Act 2007 in July that year. These additions are known as the 'deprivation of liberty safeguards', and were implemented in April 2009.[5] These amendments created administrative procedures to ensure the Act's processes are observed in cases of adults who are, or may be, deprived of their liberty in care homes or hospitals, thus protecting health and social care providers from prosecution under human rights legislation.[6]

Links to discussion of Protecting the Vulnerable[edit]

http://www.annaraccoon.com/politics/protecting-the-vulnerable/ http://www.russell-cooke.co.uk/clientUpload/document/file/Cross%20border%20incapacity%20-%20will%20England%20and%20Wales%20find%20the%20tin%20opener%20-%20Elder%20Law%20Journal%202011.pdf http://www.davesheppard.co.uk/public/DSAsample.pdf

References[edit]

  1. ^ The citation of this Act by this short title is authorised by section 69 of this Act.
  2. ^ The Mental Capacity Act 2005, sections 68(4) to (6)
  3. ^ Mental Capacity Act (2005) Code of Practice (2007) London: TSO.
  4. ^ The Mental Capacity Act 2005, section 1
  5. ^ The Mental Health Act 2007
  6. ^ http://dx.doi.org/10.1136/bmj.f5595 Braithwaite R. DoLS protect care homes, not patients. BMJ 2013;347:f5595

External links[edit]


UK Legislation[edit]

Further reading[edit]

  • Atkinson, J. (2006) Private and Public Protection: Civil Mental Health Legislation, Edinburgh, Dunedin Academic Press