Mental Capacity Act 2005

Summary

Provides a statutory framework for making decisions on behalf of people who lack mental capacity. Establishes five statutory principles, a functional test of capacity, best interests decision-making, lasting powers of attorney, advance decisions, the Court of Protection, and (as amended) the Deprivation of Liberty Safeguards.

Key Points

• Five statutory principles (s.1) including presumption of capacity
• Functional test of capacity (ss.2-3)
• Best interests checklist (s.4)
• Lasting Powers of Attorney — health & welfare and property & financial affairs (ss.9-14)
• Advance decisions to refuse treatment (ss.24-26)
• Court of Protection (Part 2)
• Deprivation of Liberty Safeguards (Schedule A1, inserted by MHA 2007)
• Independent Mental Capacity Advocates (s.35-41)
• A person is assumed to have capacity unless established otherwise (s.1(2))
• Capacity is assessed functionally and decision-specifically (s.2–3)
• Decisions made on behalf of incapacitated persons must be in their best interests (s.4)
• Lasting Powers of Attorney (LPA) allow a person to appoint a decision-maker for future incapacity (ss.9–14)
• The Court of Protection has jurisdiction over capacity disputes
• Advance decisions to refuse treatment are legally binding if valid and applicable (ss.24–26)
• Deprivation of Liberty Safeguards (DoLS) protect persons in care homes and hospitals
• Five statutory principles including presumption of capacity (s.1)
• Two-stage test for mental capacity (s.2–3)
• Best interests checklist for decisions made on behalf of incapacitated persons (s.4)
• Lasting Powers of Attorney for health/welfare and property/financial affairs (ss.9–14)
• Advance decisions to refuse treatment (ss.24–26)
• Court of Protection with power to make declarations and decisions (ss.15–23)
• Deprivation of Liberty Safeguards (Schedule A1) — to be replaced by Liberty Protection Safeguards
• Criminal offence of ill-treatment or wilful neglect of a person lacking capacity (s.44)

Parts & Sections

Amendments History

Frequently asked questions

How is mental capacity assumed under the law?

Under the Mental Capacity Act 2005, a person is legally presumed to have capacity unless it is established otherwise. This means that individuals are not treated as unable to make decisions simply because they make an unwise choice. The law requires that all practicable steps be taken to help a person make their own decision before concluding they lack capacity.

What is the legal test for lacking mental capacity?

A person lacks capacity in relation to a specific matter if, at the material time, they are unable to make a decision due to an impairment or disturbance in the functioning of their mind or brain. This inability is defined as being unable to understand, retain, or use or weigh relevant information, or being unable to communicate their decision.

What must be considered when making a best interests decision?

When making decisions on behalf of someone who lacks capacity, the decision-maker must act in that person's best interests. This involves considering all relevant circumstances, including the person's past and present wishes, beliefs, and values. The decision-maker is also required to consult with relevant persons to ensure the decision reflects the individual's best interests.

What is the status of the Deprivation of Liberty Safeguards?

The Deprivation of Liberty Safeguards (DoLS) provide a legal framework for authorising the deprivation of liberty for persons lacking capacity in care homes and hospitals. However, the Mental Capacity (Amendment) Act 2019 introduced Liberty Protection Safeguards (LPS) to replace DoLS, although the implementation of these new safeguards is currently pending.