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Mental Capacity Act 2005 - summary
The Mental Capacity Act 2005 for England and Wales received Royal Assent on 7 April
2005 and is expected to come into force in April 2007. The Act will generally only
affect people aged 16 or over and provides a statutory framework to empower and
protect people 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. It makes it clear who
can take decisions in which situations and how they should go about this. It enables
people to plan ahead for a time when they may lack capacity. 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.
This summary provides key information about the new Act and sets out some of the
changes that will occur as from April 2007.
Five key principles
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?
The Act enshrines in statute current best practice and common law principles
concerning people who lack mental capacity and those who take decisions on their
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behalf. It replaces current statutory schemes for Enduring Powers of Attorney and
Court of Protection receivers with reformed and updated schemes.
The Act deals with the assessment of a person’s capacity and acts by
carers of those who lack capacity:
• Assessing lack of capacity – The Act sets out a single clear test for assessing
whether a person lacks capacity to take a particular decision at a particular
time. It is a “decision-specific” and time specific test. No one can be labelled
‘incapable’ simply as a result of a particular medical condition or diagnosis.
Section 2 of the Act makes it clear that a lack of capacity cannot be established
merely by reference to a person’s age, appearance, or any condition or aspect
of a person’s behaviour which might lead others to make unjustified
assumptions about capacity.
• Best Interests –An act done or decision made for or on behalf of a person who
lacks capacity must be in that person’s best interests. The Act provides a non-
exhaustive checklist of factors that decision-makers must work through in
deciding what is in a person’s best interests. A person can put his/her wishes
and feelings into a written statement if they so wish, which the person making
the determination must consider. Also, people involved in caring for the person
lacking capacity gain a right to be consulted concerning a person’s best
interests.
• Acts in connection with care or treatment – Section 5 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 f someone has
to interfere with the person’s body or property in the course of providing care or
treatment.
• Restraint– 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.
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 announced that there will be additional safeguards for people who lack
capacity and are deprived of their liberty but do not receive mental health
legislation safeguards, as a result of the European Court of Human Rights
judgement in HL v United Kingdom (the “Bournewood” case). The Government
has announced that it intends to introduce these safeguards by amending the
Mental Capacity Act.
The Act deals with two situations where a designated decision-maker can
act on behalf of someone who lacks capacity:
• Lasting Powers of Attorney (LPAs) – The Act allows a person to appoint an
attorney to act on their behalf if they should lose capacity in the future. This is
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like the current Enduring Power of Attorney (EPA) in relation to property and
affairs, but the Act also allows people to empower an attorney make health and
welfare decisions. Before it can be used an LPA must be registered with the
Office of the Public Guardian (see below). EPAs created before April 2007 can
be registered after the implementation date but it will not be possible to create
EPAs after this time.
• Court appointed deputies – The Act provides for a system of court appointed
deputies to 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
(see below) 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 April 2007 will retain
their powers concerning property and affairs after the implementation date and
will be treated as deputies after this time.
The Act creates a new public body and a new official to support the
statutory framework, both of which will be designed around the needs of
those who lack capacity:
• A new Court of Protection – The new Court 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. It will be
particularly important in resolving complex or disputed cases involving, for
example, about whether someone lacks capacity or what is in their best
interests. 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. The Senior Judge designate of the Court is the current Master Lush.
• A new Public Guardian – The Public Guardian has several duties under the
Act and will be supported in carrying these out by an 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. A Public Guardian Board will be appointed to scrutinise and review
the way in which the Public Guardian discharges his functions. The Public
Guardian will be required to produce an Annual Report about the discharge of
his functions. Richard Brook is the new Public Guardian designate. He is
currently the Chief Executive of the Public Guardianship Office. The Public
Guardianship Office (PGO), based in Archway, North London, will become the
Office of the Public Guardian (OPG) in April 2007.
The Act also includes three further key provisions to protect vulnerable
people
:
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• Independent Mental Capacity Advocate (IMCA) – An IMCA will be someone
appointed to support a person who lacks capacity but has no one to speak for
them, such as family or friends. They will only 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 makes representations about the person’s wishes,
feelings, beliefs and values, at the same time as bringing to the attention of the
decision-maker all factors that are relevant to the decision. The IMCA can
challenge the decision-maker on behalf of the person lacking capacity if
necessary.
• Advance decisions to refuse treatment – 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. The Act sets out two
important safeguards of validity and applicability in relation to advance
decisions. Where an advance decision concerns treatment that is necessary to
sustain life, strict formalities must be complied with in order for the advance
decision to be applicable. These formalities are that the decision must be in
writing, signed and witnessed. In addition, there must be an express statement
that the decision stands “even if life is at risk” which must also be in writing,
signed and witnessed.
• A criminal offence – 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.
The Act also sets out clear parameters for research:
• 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. The research must
produce a benefit to the person that outweighs any risk or burden. Alternatively,
if it is to derive new scientific knowledge it must be of minimal risk to the person
and be carried out with minimal intrusion or interference with their rights.
• 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.
Code of Practice
• There will be a statutory Code of Practice to accompany the Act. The Code will
provide guidance to all those working with and/or caring for adults who lack
capacity, including family members, professionals and carers. It describes their
responsibilities when acting or making decisions with, or on behalf of,
individuals who lack the capacity to do these things themselves. Those who will
have a duty of care to a person lacking capacity, such as attorneys, deputies,
IMCAs, professionals and paid carers must have regard to the Code.