Mental Capacity Act 2005: a brief outline
The Mental Capacity Act 2005 which came into force on the 1 October 2007, provides the legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make particular decisions for themselves. Everyone working and/or caring for an adult who may lack capacity to make specific decisions must comply with this Act when making decisions or acting for that person, when the person lacks the capacity to make a particular decision for themselves. The same rule applies whether the decisions are life-changing events or everyday matters.
The Act’s starting point is to confirm in legislation that it should be assumed that an adult (aged 16 or over) has full legal capacity to make decisions for themselves (the right to autonomy) unless it can be shown that they lack capacity for themselves at the time the decision needs to be made. The Act also states that people must be given all appropriate help and support to enable them to make their own decisions or to maximise their participation in any decision making process.
The underlying philosophy of the Act is to ensure that any decision made, or action taken on behalf of someone who lacks capacity to make the decision or act for themselves is made in their best interests.
The Act is intended to assist and support people who may lack capacity and to discourage anyone who is involved in caring for someone who lacks capacity from being overly restrictive or controlling. But the Act also aims to balance an individual’s right to make decisions for themselves with their right to be protected from harm if they lack capacity to make decisions to protect themselves.
(Taken from the Mental Capacity Act 2005-Code of Practice)
New amendment
From the 1 April 2009 the Deprivation of Liberty Safeguards will come into force. This is an amendment to the Mental Capacity Act 2005.
The deprivation of liberty safeguards will cover patients in hospitals and people in care homes registered under the Care Standards Act 2000, whether placed under public or private arrangements.
The aim of the deprivation of liberty safeguards is to provide legal protection for those vulnerable people who are deprived of their liberty otherwise than under the Mental Health Act 1983, to prevent arbitrary decisions to deprive a person of liberty and to give rights to challenge deprivation of liberty authorisations. The safeguards apply to people who lack capacity to consent to care or treatment, and who are suffering from a disorder of the mind. The Government expects that implementation of the safeguards will reduce the numbers of people deprived of their liberty in care homes and hospitals.
(Taken from Department of Health Briefing Sheet-Deprivation of Liberty Safeguards- November 2007)
This page was last updated on 29 May 2008
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