Mental Capacity Act 2005

The Mental Capacity Act 2005 for England and Wales received Royal Assent on 7
April 2005 and came fully into force on 1st October 2007.

The Act generally only affects 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. Alternatively, it may be because at the time the decision needs to
be made, they are unconscious or barely conscious whether due to an accident or
being under anaesthetic or their ability to make a decision may be affected by the
influence of alcohol or drugs.

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 covers 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.

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
• Less restrictive option – anything done for or on behalf of a person who lacks
capacity should consider options that are less restrictive of their basic rights
and freedoms if they are as effective as the proposed option.


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
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 that 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. In addition, people involved in caring for the
person lacking capacity have 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 introduced 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 introduced these safeguards by amending the Mental
Capacity Act via the Mental Health Act 2007 that gained Royal Assent in July
2007, and it is planned to introduce them during 2008.