The Mental Capacity Act 2005
The Mental Capacity Act came into force across England and Wales
on October 1 2007. The act provides a legal definition for mental
capacity and was designed to protect and empower people who are
unable to make decisions.
The definition of mental capacity
The Mental Capacity Act 2005 defines that 'a person lacks
capacity in relation to a matter if at the material time he is
unable to make a decision for himself in relation to the matter
because of an impairment of, or a disturbance in the functioning
of, the mind or brain.'
Types of decision
The Mental Capacity Act has created a new Court of Protection
which has the power to deal with decisions about the health and
welfare of a person who lacks capacity, including consenting to
medical treatment. In addition the Court of Protection will
make decisions relating to property, the management
of financial affairs and making wills.
Court of Protection & Office of the Public Guardian
The Court of Protection can determine whether a person lacks
capacity to make particular decisions. In the event that a one
off decision by the Court is not sufficient, a professional deputy can be appointed to
make decisions on behalf of the person who lacks capacity. The
Office of The Public Guardian will maintain a register and
supervise all appointed deputies, and when necessary arrange
visits by a representative of the Court of Protection.
The Mental Capacity Act principles
The Mental Capacity Act has introduced five key principles which
have to be taken into account when determining if a person has
capacity to make a decision or when a decision is made on behalf of
a person who lacks capacity.
- Presumption of capacity - A person must be
assumed to have capacity unless it is established that he lacks
capacity.
- Participation in decision making - A person is
not to be treated as unable to make a decision unless all
practicable steps to help him to do so have been taken without
success.
- Eccentric and unwise decisions - A person is
not to be treated as unable to make a decision merely because he
makes an unwise decision.
- Best interest concept - 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 best interests.
- Least restrictive
intervention - 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
Measuring mental capacity
A person is unable to make a decision for himself if he is
unable:
- to understand the information relevant to the decision,
- to retain that information,
- to use or weigh that information as part of the process of
making the decision, or
- to communicate his decision (whether by talking, using sign
language or any other means).
Hugh James
Court of Protection Deputy
At Hugh James we have built a team of professionals who have
many years of experience working with the Court of Protection and
the Office of the Public Guardian. We are one of a small number of
dedicated specialist units with the necessary range of skills,
experience and understanding to give clients the required level of
support. When acting as professional
deputy we ensure compliance with the Mental Capacity Act
2005.