The Mental Capacity Act 2005

After relatively little fanfare, some of the provisions of the Mental Capacity Act 2005 ("the Act") came into force on 1st April 2007. The majority of the Act will come into force on 1st October 2007. There is a lengthy Code of Practice which explains how the Act should be applied.

Regrettably this article is long and unexciting - however it is still significantly less long than the Code of Practice. My hope is that it will be a useful summary for practitioners who feel they should be aware of the Act's contents but don't want to spend a whole day reading the Act and the Code of Practice.

Part 1 of this article will summarise the Act's basic principles and consider what the Act means for patients and hospitals. Part 2 will consider the effect of the changes to the Court of Protection for those representing patients.

The context of the Act

The Act provides a blueprint of how we should deal with people (aged over 16) who are unable to make a decision for themselves in relation to a particular matter at a particular time because of an impairment of, or a disturbance in the functioning of their mind or brain. This fills a lacuna in the current law.

The existing Court of Protection is responsible for supervising the financial affairs of those people who do not have capacity to manage their own financial affairs. The Court of Protection appoints Receivers who are given the authority to make financial decisions for those they represent. However, at present, nobody has the authority to make health and welfare decisions for people who do not have the capacity to make their own decisions. Those working with people without capacity, including clinicians, at present have to ask the Family Division of the High Court to use its inherent jurisdiction and make a declaration that a proposed course of action is lawful. In such proceedings the Family Division Judge considers the best interests of the person in question.

From October 2007, the new Court of Protection will be able to appoint Deputies who can be authorised to make health and welfare decisions, as well as financial decisions for those who do not have capacity to make the decision themselves. Certain other people, including healthcare professionals and carers, who have to make decisions on behalf of adults without capacity in the course of caring for them or treating them will be protected from legal liability as long as they have followed the process set out in the Act.

Decisions taken under the Act could be decisions about day-to-day matters or decisions about life-changing events. Nothing in the Act permits a decision to be made on someone else's behalf on marriage, consent to sexual relations, divorce, adoption, discharge of parental responsibility for matters other than property and consent under the Human Fertilisation and Embryology Act 1990.

The basic principles - sections 1-4

Section 1 of the Act sets out the five statutory principles which underlie it.

A person must be assumed to have capacity unless it is established that he lacks capacity.

He must not be treated as being unable to make a decision unless all practical steps...