Mental Capacity Act 2005

The Mental Capacity Act 2005[1]

Long title An Act to make new provision relating to persons who lack capacity; to establish a superior court of record called the Court of Protection in place of the office of the Supreme Court called by that name; to make provision in connection with the Convention on the International Protection of Adults signed at the Hague on 13 January 2000; and for connected purposes.
Citation 2005 c 9
Territorial extent England and Wales, except that paragraph 16(1) of Schedule 1 and paragraph 15(3) of Schedule 4 extend to the United Kingdom and, subject to any provision made in Schedule 6, the amendments and repeals made by Schedules 6 and 7 have the same extent as the enactments to which they relate.[2]
Dates
Royal Assent 7 April 2005
Text of statute as originally enacted
Revised text of statute as amended

The Mental Capacity Act 2005 (c 9) is an Act of the Parliament of the United Kingdom applying to England and Wales. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves.[3]

Key features of the Act

The five statutory principles

The five principles are outlined in the Section 1 of the Act. These are designed 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 he/she lacks capacity.

2. A person is not to be treated as unable to make a decision unless all practicable steps to help him/her 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/she 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/ her 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.[4]

Summary of other key elements of the Act

Section 68 - Commencement and extent

The following orders have been made under this section:

Timetable of new features

The new measures that the Act introduced were:

April 2007

October 2007

Amendments

In response to the ruling by the European Court of Human Rights in HL v UK (2004) (the 'Bournewood' judgment) the Act was amended by the Mental Health Act 2007 in July that year. These additions are known as the Deprivation of Liberty Safeguards (DoLS), and were implemented in April 2009.[5] These amendments created administrative procedures to ensure the Act's processes are observed in cases of adults who are, or may be, deprived of their liberty in care homes or hospitals, thus protecting health and social care providers from prosecution under human rights legislation.[6]

Key elements of the DoLS are that the person must be provided with a representative and given the right to challenge the deprivation of liberty through the Court of Protection, and that there must be a mechanism for the deprivation of liberty to be reviewed and monitored regularly.[7]

The DoLS were introduced in response to the Bournewood case, on which the European Court of Human Rights ruled in October 2004 (HL v United Kingdom) that a detention of an incapacitated patient which did not comply with Article 5 of the European Convention on Human Rights had taken place; in particular, a person who is detained must be told the reasons for the detention and must also, under Article 5(4), have the right of speedy access to a court to appeal against the detention.

Links to discussion of Protecting the Vulnerable

http://www.annaraccoon.com/politics/protecting-the-vulnerable/ http://www.russell-cooke.co.uk/clientUpload/document/file/Cross%20border%20incapacity%20-%20will%20England%20and%20Wales%20find%20the%20tin%20opener%20-%20Elder%20Law%20Journal%202011.pdf http://www.davesheppard.co.uk/public/DSAsample.pdf

UK Legislation

References

  1. ↑ The citation of this Act by this short title is authorised by section 69 of this Act.
  2. ↑ The Mental Capacity Act 2005, sections 68(4) to (6)
  3. ↑ Mental Capacity Act (2005) Code of Practice (2007) London: TSO.
  4. ↑ The Mental Capacity Act 2005, section 1
  5. ↑ The Mental Health Act 2007
  6. ↑ http://dx.doi.org/10.1136/bmj.f5595 Braithwaite R. DoLS protect care homes, not patients. BMJ 2013;347:f5595
  7. ↑ "Factsheet 483: Deprivation of Liberty Safeguards (DoLS)". Alzheimer's Society. Retrieved 23 February 2015.

Further reading

External links