Mental Capacity Act 2005 - summary
The Mental Capacity Act 2005 provides a statutory framework to empower and
protect vulnerable people who may not be able to make their own 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 lose
capacity.
Guidance on the Act will be provided in a statutory Code of Practice. A draft was made available to assist Parliamentary consideration of the Bill.
Five key principles
What does the Act do?
Five key principles
The whole Act is underpinned by a set of five key principles stated at Section
1:
-
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;
- The right for individuals to be supported to make their own decisions
- people must be given all appropriate help before anyone concludes that
they
cannot make their own decisions;
- That individuals must retain the right to make what might be seen as eccentric
or unwise decisions;
- Best interests - anything done for or on behalf of people without
capacity must be in their best interests; and
- Least restrictive intervention - anything done for or on behalf of
people without 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 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" test.
No one can be labelled 'incapable' 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 - Everything that is done for or on behalf of
a person who lacks capacity must be in that person's best interests.
The Act provides a 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, carers
and family members gain a right to be consulted.
- Acts in connection with
care or treatment - Section 5 clarifies
that, where a person is providing care or treatment for someone who lacks
capacity, then the person can provide the care without incurring legal
liability. The key will be proper assessment of capacity and best interests.
This will cover actions that would otherwise result in a civil wrong or
crime if someone has to interfere with the person's body or property
in the ordinary course of caring. For example, by giving an injection
or by using the person's money to buy items for them.
- Restraint/deprivation
of liberty. Section 6 of the Act defines restraint as the use or threat
of force where an incapacitated person 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 incapacitated person, and if
the restraint used is proportionate to the likelihood and seriousness
of the
harm.
- Section 6(5) makes it clear that an act depriving a person of
his or her liberty within the meaning of Article 5(1) of the European
Convention
on Human Rights cannot be an act to which section 5 provides any protection.
- The
Department of Health and National Assembly for Wales have each issued
interim advice to the NHS and local authorities on the implications
of the European Court of Human Rights judgment in HL v United Kingdom
(the "Bournewood" case), pending the development of proposals
for new procedural safeguards for the protection of those people falling
within the "Bournewood gap".
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 like the current Enduring Power of Attorney
(EPA),
but the Act also allows people to let an attorney make health and
welfare decisions.
- Court appointed deputies - The Act provides for a
system of court appointed deputies to replace the current system of
receivership in the Court of
Protection. Deputies will be able to take decisions on welfare, healthcare
and financial matters as authorised by the Court 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.
The Act creates two new public bodies 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 and will be the final arbiter for capacity
matters. It will have its own procedures and nominated judges.
- A new
Public Guardian - The Public Guardian and his/her 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/her functions. The Public Guardian will
be required to produce an Annual Report about the discharge of his/her
functions.
The Act also includes three further key provisions to protect vulnerable
people
- Independent Mental Capacity Advocate (IMCA) An IMCA is someone appointed
to support a person who lacks capacity but has no one to speak for
them. 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 - Statutory rules with
clear safeguards confirm that people may make a decision in advance to
refuse treatment if they should lose capacity in the future. It is made
clear in the Act that an advance decision will have no application to
any treatment which a doctor considers necessary to sustain life unless
strict formalities have been complied with. 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".
- A criminal offence - The Bill 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.
Transitional regulations will cover research started before the Act
where the person originally had capacity to consent, but later lost
capacity
before the end of the project.
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