The Mental Capacity Act

  • The Mental Capacity Act 2005 was fully implemented on 1st October 2007
  • The Act provides a framework to protect vulnerable people who lack mental capacity
  • It covers all of the major decisions that have to be made including those concerning:
    • Property and financial affairs
    • Healthcare and social care treatment
  • The Act makes it clear who can make decisions on behalf of someone else, and when they can do so
  • A Code of Practice accompanies the Act, giving guidance and explaining the law in detail

What is Mental Capacity?

Mental Capacity is the ability to make a decision.  The Code of Practice outlines a two stage test:

  1. Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works?
  2. If so, does the impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made?

A person may lack capacity to make certain decisions if they have:

  • A learning disability
  • Dementia
  • A mental health problem
  • A brain injury
  • Suffered a stroke

What are the Act’s key principles?

The Act contains five key principles:

  1. Every adult has the right to make their own decisions, and must be assumed to have the capacity to do so unless proved otherwise
  2. A person must be given all practicable help before anyone treats them as not being able to make their own decisions
  3. Just because an individual makes an unwise decision, they should not be treated as lacking capacity to make that decision
  4. Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests
  5. Anything done for or on behalf of the person who lacks capacity should be the least restrictive of their basic rights and freedoms

What Does the Act Do?

The Act created:

  • A new role - Public Guardian
  • A new office - Office of the Public Guardian
  • A new Court of Protection 

The Court has the same powers, rights, privileges and authority to deal with issues concerning mental capacity as the High Court.  It is now a Court of record and can set out how future matters should be considered and dealt with.

Essentially, the Act:

  • Sets out a framework so that a person’s capacity to make decisions for themselves can be properly assessed
  • Gives guidance as to how this is achieved
  • Create safeguards to protect those lacking capacity to act for themselves

Helping you plan ahead

The Act also sets out provisions so that you can make plans for a time when you may lack mental capacity. This is by creation of Lasting Powers of Attorney. 

You can also make advance decisions to refuse medical treatment, in the event that you lack the capacity to give those instructions at a later date.

To find out more visit the Office of the Public Guardian Website

Getting in touch

For more information on The Mental Capacity Act and how it might apply, please contact David Endicott on 01295 204005 or email dendicott@se-law.co.uk