The Mental Capacity Act 2005 (c 9) is an Act of the

Parliament of the United Kingdom The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative suprema ...

applying to England and Wales. 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.

Key features of the Act

The five statutory principles

The five principles are outlined in the Section 1 of the Act. These are designed to protect people who lack capacity to make particular decisions, but also to maximise their ability to make decisions, or to participate in decision-making, as far as they are able to do so.

Summary of other key elements of the Act

* The Act makes provision for people to plan ahead for a time when they may need support. This introduces advance decisions to refuse treatment. * The decision (or question) under consideration must be time and decision specific. * The Act upholds the principle of Best Interest for the individual concerned. * A Court of Protection will help with difficult decisions. Th
Office of the Public Guardian
(formerly Public Guardianship Office), the administrative arm of the Court of Protection, will help the Act work. * A
Independent Mental Capacity Advocate
(IMCA) service will provide help for people who have no intimate support network. * S(44) of The Act makes it a criminal offence to wilfully neglect someone without capacity. * The Act generally applies only to those over the age of 16 years, although may apply to some younger people if it is supposed that their capacity will continue to be impaired into adulthood.

Section 68: Commencement and extent

The following orders have been made under this section:
The Mental Capacity Act 2005 (Commencement No.1) Order 2006
(S.I. 2006/2814 (C. 95))
The Mental Capacity Act 2005 (Commencement No.1) (Amendment) Order 2006
(S.I. 2006/3473 (C. 133))
The Mental Capacity Act 2005 (Commencement No. 2) Order 2007
(S.I. 2007/1897 (C. 72))
The Mental Capacity Act 2005 (Commencement No. 1) (England and Wales) Order 2007
(S.I. 2007/563 (C. 24))
Mental Capacity Act 2005 (Commencement) (Wales) Order 2007
(S.I. 2007/856 (W. 79) (C. 34))

Timetable of new features

The new measures that the Act introduced were: ''April 2007'' * A new criminal offence of wilful neglect of a person without capacity * A new Independent Mental Capacity Advocacy Service in England * A Code of Practice that tells people how to ensure they are following the Act ''October 2007'' * Extension of the Independent Mental Capacity Advocacy Service to Wales * Lasting Powers of Attorney and deputies * A new

Court of Protection The Court of Protection in English law is a superior court of record created under the Mental Capacity Act 2005. It has jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decision ...

* A ne
Office of the Public Guardian

Amendments

In response to the ruling by the

European Court of Human Rights The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that a ...

in ''HL v UK'' (2004) (the 'Bournewood' judgment) the Act was amended by the

Mental Health Act 2007 The Mental Health Act 2007 (c 12) is an Act of the Parliament of the United Kingdom. It amended the Mental Health Act 1983 and the Mental Capacity Act 2005. It applies to people residing in England and Wales. Most of the Act was implemented on ...

in July that year. These additions are known as the Deprivation of Liberty Safeguards (DoLS), and were implemented in April 2009. 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. 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. The DoLS were introduced in response to the '' Bournewood case'', on which the

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 Article 5 of the European Convention on Human Rights (Art.5 ECHR for short) provides that everyone has the right to liberty and security of person. Liberty and security of the person are taken as a "compound" concept - security of the person has n ...

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 A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance ...

to appeal against the detention.

Mental Capacity (Amendment) Bill 2019

Th
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 statuary definition of deprivation of liberty. Target date for implementation was October 2020, It was announced by

Helen Whately Helen Olivia Bicknell Whately (''née'' Lightwood; born 23 June 1976) is a British politician serving as Minister of State for Social Care since October 2022, and previously from 2020 to 2021. She also served as Exchequer Secretary to the Treas ...

, Minister for Care in July 2020 that the implementation would be delayed, with full implementation expected by April 2022. Some of this delay was due to the

Coronavirus disease 2019 Coronavirus disease 2019 (COVID-19) is a contagious disease caused by a virus, the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). The first known case was identified in Wuhan, China, in December 2019. The disease quickly ...

pandemic. During this period a draft

Code of practice A code of practice can be a document that complements occupational health and safety laws and regulations to provide detailed practical guidance on how to comply with legal obligations, and should be followed unless another solution with the same ...

will be produced which will go out to

Public consultation Public consultation (Commonwealth countries and European Union), public comment (US), or simply consultation, is a regulatory process by which the public's input on matters affecting them is sought. Its main goals are in improving the efficiency, ...

UK legislation

*
Explanatory notes
to the Mental Capacity Act 2005.

References

External links

Department of Health summary

Summary from direct.gov

Easy Read Summary in Plain English

Factsheet 460: Mental Capacity Act 2005
Alzheimer's Society
Factsheet 483: Deprivation of Liberty Safeguards (DoLS)
Alzheimer's Society
Protecting the Vulnerable? by Anna Raccoon

Cross border incapacity: Will England and Wales find the tin opener? Schedule 3 to the Mental Capacity Act 2005
{{UK legislation 2005 in England 2005 in Wales Acts of the Parliament of the United Kingdom concerning England and Wales Mental health law in the United Kingdom Welfare in England Welfare in Wales United Kingdom Acts of Parliament 2005 Capacity (law)