UK Mental Capacity Act 2005

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The Mental Capacity Act 2005 (c 9) is an Act of Parliament of the Parliament of the United Kingdom. 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.

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.

Summary of other key elements of the Act

• 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 Office of the Public Guardian (formerly Public Guardianship Office), 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.
• The Act generally applies only to those over the age of 16 years, although may apply to some younger people if it is supposed that their capacity will continue to be impaired into adulthood.

Section 68 - Commencement and extent

The following orders have been made under this section:

• The Mental Capacity Act 2005 (Commencement No.1) Order 2006 (S.I. 2006/2814 (C. 95))
• The Mental Capacity Act 2005 (Commencement No.1) (Amendment) Order 2006 (S.I. 2006/3473 (C. 133))
• The Mental Capacity Act 2005 (Commencement No. 2) Order 2007 (S.I. 2007/1897 (C. 72))

• The Mental Capacity Act 2005 (Commencement No. 1) (England and Wales) Order 2007 (S.I. 2007/563 (C. 24))

• Mental Capacity Act 2005 (Commencement) (Wales) Order 2007 (S.I. 2007/856 (W. 79) (C. 34))

Timetable of new features

The new measures 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 in England
• A Code of Practice that tells people how to ensure they are following the Act

October 2007

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

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', and were implemented in April 2009.. These amendments created a range of administrative and legal safeguards to protect the rights of adults who lack capacity who are, or may be, deprived of their liberty in care homes or hospitals.

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

External links

• Department of Health summary
• Summary from direct.gov
• Easy Read Summary in Plain English
• [http://health.groups.yahoo.com/group/Mental-Health-Law/ Mental Health Law Discussion Group

UK Legislation

• Template:UK-LEG
• Explanatory notes to the Mental Capacity Act 2005.

Further reading

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

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