The Mental Capacity Act 2005
(c 9) is an Act
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
of the Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity
Informed consent is a phrase often used in law to indicate that the consent a person gives meets certain minimum standards. As a literal matter, in the absence of fraud, it is redundant. An informed consent can be said to have been given based upon a clear appreciation and understanding of the...
to make particular decisions for themselves.
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.
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:
Timetable of new features
The new measures that the Act introduced were:
- 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
- Extension of the Independent Mental Capacity Advocacy Service to Wales
- Lasting Powers of Attorney
Lasting powers of attorney in England and Wales were created under the Mental Capacity Act 2005 of which copies are available online, and came into effect on 1 October 2007. The LPA replaced the former Enduring Powers of Attorney which were narrower in scope...
- A new Court of Protection
- A new Office of the Public Guardian
In response to the ruling by the European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
in HL v UK (2004) (the 'Bournewood'
In R v Bournewood Community and Mental Health NHS Trust the House of Lords ruled that a man who had been informally admitted to a psychiatric hospital without capable consent had not been unlawfully detained under the common law...
judgment) the Act was amended by the Mental Health Act 2007
The Mental Act 2007 is an Act of the Parliament of the United Kingdom. It amends the Mental Health Act 1983 and the Mental Capacity Act 2005. It applies to people in England and Wales. Most of the Act was implemented on 3 November 2008....
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.
- Atkinson, J. (2006) Private and Public Protection: Civil Mental Health Legislation, Edinburgh, Dunedin Academic Press