| Act of Parliament | |
| |
| Long title | An Act to make new provision relating to persons who lack capacity; to establish a superior court of record called the Court of Protection in place of the office of the Supreme Court called by that name; to make provision in connection with the Convention on the International Protection of Adults signed at the Hague on 13 January 2000; and for connected purposes. |
|---|---|
| Citation | 2005 c. 9 |
| Territorial extent | England and Wales, except that paragraph 16(1) of Schedule 1 and paragraph 15(3) of Schedule 4 extend to the United Kingdom and, subject to any provision made in Schedule 6, the amendments and repeals made by Schedules 6 and 7 have the same extent as the enactments to which they relate.[2] |
| Dates | |
| Royal assent | 7 April 2005 |
Status: Amended | |
| Text of statute as originally enacted | |
| Revised text of statute as amended | |
The Mental Capacity Act 2005 (c. 9) is an act of the Parliament of the United Kingdom applying to England and Wales.[3] 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.[4]
The five principles are outlined in Section 1 of the Act. These are designed to protect people who lack capacity to make particular decisions and to maximise their ability to make decisions and 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.[5]
The following orders have been made under this section:
The new measures that the Act introduced were:
April 2007
October 2007
In response to the ruling by the European Court of Human RightsinHL 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 (DoLS), and were implemented in April 2009.[6] These amendments created administrative procedures to ensure the Act's processes are observed in cases of adults who are, or may be, deprived of their liberty in care homes or hospitals, thus protecting health and social care providers from prosecution under human rights legislation.[7]
Key elements of the DoLS are that the person must be provided with a representative and given the right to challenge the deprivation of liberty through the Court of Protection, and that there must be a mechanism for the deprivation of liberty to be reviewed and monitored regularly.[8]
The DoLS were introduced in response to the Bournewood case, on which the European Court of Human Rights ruled in October 2004 (HL v United Kingdom) that a detention of an incapacitated patient which did not comply with Article 5 of the European Convention on Human Rights had taken place; in particular, a person who is detained must be told the reasons for the detention and must also, under Article 5(4), have the right of speedy access to a court to appeal against the detention.
The Mental Capacity Act was amended in May 2019. This act will replace DoLS with a new legal framework called Liberty Protection Safeguards (LPS). These will be used for anyone 16 or above who lacks capacity rather than 18 as previously used in DoLS. The "acid test' from the Cheshire West case remains, there is still no statutory definition of deprivation of liberty. The target date for implementation was October 2020,[9] but it was announced by Helen Whately, Minister for Care, in July 2020 that the implementation would be delayed, with full implementation expected by April 2022. Some of this delay was attributed to the Coronavirus disease 2019 pandemic. During this period a draft Code of practice will be produced which will go out to public consultation.[10] On 4 April 2023 a further delay was announced by the government, who stated that any implementation is likely to be beyond the life of the present Parliament.[11]
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