The Mental Capacity Act 2005 for England and Wales received Royal Assent on 7 April 2005 and comes into force 2007. It provides a statutory framework for to empower and protect people aged 16 or over who may lack capacity to make some decisions for themselves, for example, people with dementia, learning disabilities, mental health problems, stroke or head injuries who may lack capacity to make certain decisions.
The Act will cover major decisions about someone’s property and affairs, healthcare treatment and where the person lives, as well as everyday decisions about personal care (such as what someone eats), where the person lacks capacity to make the decisions themselves.
The whole Act is underpinned by a set of five key principles set out in Section 1 of the Act:
A presumption of capacity – every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise;
Individuals being supported to make their own decisions – a person must be given all practicable help before anyone treats them as not being able to make their own decisions;
Unwise decisions – just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision;
Best interests – an act done or decision made under the Act for or on behalf of a person who lacks capacity must be done in their best interests; and
Least restrictive option – anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.
What does the Act do?
Most of the Mental Capacity Act comes into effect from October 2007, though parts of it took effect from April 2007. In addition to the Act itself there is also a supporting (and legally binding) Code of Practice.
From April 2004
the Code of Practice will be available
there will be a new Independent Mental Capacity Advocate (IMCA) service in England. An IMCA will be appointed to support anyone who lacks capacity but has no one to speak for them. They will be involved where decisions are being made about serious medical treatment or a change in the person’s accommodation where it is provided by the National Health Service or a local authority. The IMCA can representations and challenge a decision-maker on behalf of the person lacking capacity if necessary.
the Act introduces a new criminal offence of ill treatment or neglect of a person who lacks capacity. A person found guilty of such an offence may be liable to imprisonment for a term of up to five years.
From October 2007
there will be a new Independent Mental Capacity Advocate (IMCA) service in Wales.
the Act sets out a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time. No one can be labelled ‘incapable’ simply as a result of a particular medical condition or diagnosis, age, appearance, or any condition or aspect of a person’s behaviour which might lead others to make unjustified assumptions about capacity.
an act done or decision made for or on behalf of a person who lacks capacity must be in that person’s best interests.
Section 5 of the Act offers statutory protection from liability where a person is performing an act in connection with the care or treatment of someone who lacks capacity. This could cover actions that might otherwise attract criminal prosecution or civil liability if someone has to interfere with the person’s body or property in the course of providing care or treatment.
Section 6 of the Act sets out limitations on section 5. It defines restraint as the use or threat of force where a person who lacks capacity resists, and any restriction of liberty or movement whether or not the person resists. Restraint is only permitted if the person using it reasonably believes it is necessary to prevent harm to the person who lacks capacity, and if the restraint used is a proportionate response to the likelihood and seriousness of the harm. (Note: This section does not extend to deprivation of liberty within the meaning of Article 5(1) of the European Convention on Human Rights. The Government has proposed to amend the Mental Capacity Act by introducing additional safeguards for people who lack capacity and are deprived of their liberty to protect them from harm, who are in hospitals and care homes, but who do not receive mental health legislation safeguards. This is as a result of the European Court of Human Rights judgement in HL v United Kingdom (the “Bournewood” case). The Bournewood safeguards are being introduced via the Mental Health Bill which was introduced to Parliament on 16 November 2006, although the safeguards will amend the Mental Capacity Act, if approved by Parliament).
Lasting Powers of Attorney (LPAs) will replace the current Enduring Power of Attorney (EPA) in relation to property and affairs. However the LPA can also be empowered to make health and welfare decisions. EPAs created before October 2007 can be registered after the implementation date but it will not be possible to create EPAs after this time.
Court appointed deputies will replace the current system of receivership in the existing Court of Protection. Deputies will be able to be appointed to take decisions on welfare, healthcare and financial matters as authorised by the new Court of Protection but will not be able to refuse consent to life-sustaining treatment. They will only be appointed if the Court cannot make a one-off decision to resolve the issues. People appointed as receivers before October 2007 will retain their powers concerning property and affairs after the implementation date in October 2007 and will be treated as deputies after this time.
There will be a new Court of Protection which will have jurisdiction relating to the whole Act. It will have its own procedures and nominated judges. It will be able to make declarations, decisions and orders affecting people who lack capacity and make decisions for or appoint deputies to make decisions on behalf of people lacking capacity. It will deal with decisions concerning both property and affairs, as well as health and welfare decisions. The Court will be based in venues in a small number of locations across England and Wales and will be supported by a central administration in London.
there will be a new Public Guardian. The Public Guardian has several duties under the Act and will be supported in carrying these out by a new Office of the Public Guardian (OPG). The Public Guardian and his staff will be the registering authority for LPAs and deputies. They will supervise deputies appointed by the Court and provide information to help the Court make decisions. They will also work together with other agencies, such as the police and social services, to respond to any concerns raised about the way in which an attorney or deputy is operating.
the Act creates statutory rules with clear safeguards so that people may make a decision in advance to refuse treatment if they should lack capacity in the future.
research involving, or in relation to, a person lacking capacity may be lawfully carried out if an “appropriate body” (normally a Research Ethics Committee) agrees that the research is safe, relates to the person’s condition and cannot be done as effectively using people who have mental capacity. Carers or nominated third parties must be consulted and agree that the person would want to join an approved research project. If the person shows any signs of resistance or indicates in any way that he or she does not wish to take part, the person must be withdrawn from the project immediately.
Who to contact
If you would like any further information on the Act you can contact:
Office of the Public Guardian
Archway Tower
2 Junction Road
London
N19 5SZ
The Bamford Review of Mental Health and Learning Disability was set up in late 2002 to examine how services for people with mental illness or learning disabilities could be improved. On 31st October 2006, the Bamford Review closed formally.
Northern Ireland Health Minister Paul Goggins, in giving his initial response to the findings of the Review, acknowledged that mental health and learning disability services in Northern Ireland need major modernisation.
To achieve this aim he has established a cross government taskforce and also announced a new post of Director for Mental Health and Learning Disability.
The Adults with Incapacity ( Scotland) Act 2000 provides ways to manage the financial and welfare affairs of people who are unable to manage them for themselves. You can find out more about this on the Scottish Executive website.
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Mental Capacity Act 2005 
