Mental Capacity Act 2005: Your Questions Answered

Last week the Mental Capacity Bill received Royal Assent. Here we answer your questions about the new Act.

What is the New Mental Capacity Act about?

The new Mental Capacity Act 2005 provides a statutory framework for people who may not be able to make their own decisions. This might be because of a learning disability or an illness such as dementia – or it might be due to mental health problems.

The Act says:

• who can take decisions
• in which situations they can take those decisions
• how they should go about this.

What’s in the Act?

Key provisions in the Act are:

• Five key principles, which make it clear that a person should be assumed to have capacity unless proven otherwise.

• A ‘best interests’ checklist for people acting on behalf of others. This includes consideration of the person’s wishes, feelings, beliefs and values (including any written advance statement made by them when they had capacity) taking account of the views of their family and friends.

• Protection to carers and professionals, subject to rules and limitations, to lawfully care for someone who cannot consent without incurring liability.

• Lasting powers of attorney (LPA) – for people to appoint an attorney of their choosing to act on their behalf if they should lose capacity in the future.

• Provisions for the court to appoint deputies to make decisions on behalf of a person about matters in relation to which that person lacks capacity.

• Creation of Independent Mental Capacity Advocates to support and represent people lacking capacity who have no one else to speak for them when decisions need to be taken about serious medical treatment and long-term residential care.

• New safeguards controlling many types of research involving people who lack capacity.

• For a person whilst they have capacity, if they so wish, to make an advance decision to refuse treatment, known as living wills.

• The introduction of a criminal offence of ill treatment or neglect of a person who lacks capacity, with a maximum sentence of five years.

Anything else I should know?

The Act also creates two new public bodies:

• Court of Protection – the new court will have jurisdiction in relation to the Mental Capacity Act. It will have special procedures and judges.

• Public Guardian – this public official will take over from the current Public Guardianship Office. The Public Guardian will be the registering authority for lasting powers of attorney and deputies.

Where can I find out more about the Act?

The full text of the Mental Capacity Act 2005 is available at: