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Mental Capacity Act 2005

The Act enshrines in statute current best practice and common law principles. It replaces current statutory schemes for enduring powers of attorney and Court of Protection receivers with reformed and updated schemes.

The Act deals with:

• Assessing lack of capacity – The Act sets out a single clear test for assessing capacity to take a particular decision at a particular time.
• Best Interests – Everything that is done for or on behalf of a person who lacks capacity must be in that person’s best interests.
• Acts in connection with care or treatment – care can be provided without incurring legal liability. (Section 5)
• Restraint/deprivation of liberty. Restraint is only permitted if the person using it reasonably believes it is necessary to prevent harm, and is proportionate to the likelihood and seriousness of the harm. It provides clarity around Article 5(1) of the European Convention on Human Rights. (Section 6)
• The Department of Health and National Assembly for Wales have each issued interim advice on the implications of the European Court of Human Rights judgment in HL v United Kingdom (the “Bournewood” case), -“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) –This is like the current Enduring Power of Attorney (EPA).
• Court appointed deputies -

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
• A new Public Guardian

The Act also includes three further key provisions to protect vulnerable people

• Independent Mental Capacity Advocate (IMCA) Someone appointed to support a person lacking capacity who has no one to speak for them.
• 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. The decision must be in writing, signed and witnessed. The decision stands “even if life is at risk”.
• A criminal offence - of ill treatment or neglect of a person who lacks capacity.

The Act also sets out clear parameters for research

• Research involving, or in relation to, a person lacking capacity may be carried out with minimal intrusion or interference with the individuals rights.
• Carers or nominated third parties must be consulted and agree that the person would want to join an approved research project.