Mental Capacity Act 2005

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The Mental Capacity Act 2005 is an act of the United Kingdom parliament that came into force in April 2007. It applies to everyone over the age of 16 in England and Wales. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of individuals who lack the capacity to make particular decisions for themselves. [1]

Contents

[edit] Key features of the Act

[edit] The five statutory principles

The five principles are outlined in the Section 1 of the Act. It aims 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 they lack capacity.

2. A person is not to be treated as unable to make a decision unless all practicable steps to help him 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 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 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. [2]

[edit] Summary of other key elements of the Act

  • The Act assumes that everyone can make their own decisions – just that some people need support.
  • 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 Public Guardianship Office (PGO), 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.

[edit] Timetable of new features

The new things that the Act introduced were:

April 2007

  • A new criminal offence of wilful neglect of a person without capacity
  • A new Independent Mental Capacity Advocacy Service (England)
  • A Code of Practice which will tell people how to make sure they are following the Act

October 2007

  • Independent Mental Capacity Advocacy Service extended to Wales
  • New Lasting Powers of Attorney and deputies
  • A new Court of Protection
  • A new Office of the Public Guardian

[edit] Amendments

This Act was amended by the Mental Health Act 2007 in July 2007, although this awaits implementation.[3]

[edit] References

  1. ^ Mental Capacity Act (2005) Code of Practice (2007) London: TSO.
  2. ^ Section 1 Mental Capacity Act 2005
  3. ^ Mental Health Act 2007 Accessed July 25 2007

[edit] External links

[edit] Further Reading

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