The Mental Capacity Act 2005

The Mental Capacity Act 2005 now governs most aspects of decision making on behalf of mentally incapacitated adults. The Act received Royal Assent in July 2005 and came into force in October 2007.

The law under the Mental Capacity Act 2005 affects anyone aged 16 or over who is unable to make decisions. This could be because of a number of reasons including:

A learning disability
Mental health problems
A brain injury
Alcohol or drug misuse etc.

The Mental Capacity Act does not apply to children aged under 16 who do not have capacity. Generally speaking, people with parental responsibility for such children will be making decisions on their behalf already. The Act is only therefore of limited potential application to brain injured children.

Familiarity with the Act and what it provides will assist the parents of brain injured children to prepare for the future by considering decisions which may need to be made in advance of their child reaching 16 years of age, if she or he is unlikely to have the requisite mental capacity at that point.

This could include the appointment of a Deputy of the Court of Protection to look after the child’s affairs, when they are older, and when the parents may no longer be able or around to make such decisions. This could be another family member, a professional such as a solicitor or one of the available panel of Deputies.

While the Act generally applies to those over 16 years, certain provisions only apply to those over 18 years. These are advance decisions regarding medical treatment and the power to set up or be appointed under a Lasting Power of Attorney (LPA).

The Five Key Principles

The Act is underpinned by a set of five key principles stated at Section 1. The Department of Health’s summary of these principles reads as follows:

Start off by thinking that everyone can make their own decisions;
Dive the person all the support they can to help them make decisions;
No one should be stopped from making a decision just because someone else thinks it is wrong or bad;
Any time someone does something or decides for someone who lacks capacity, it must be in the persons best interests - there is a checklist for this;
When they do something or decide something for another person they must try to limit their basic rights and freedoms as little as possible;

Assessing Capacity

The Act sets out a single, clear “decision-specific” test in this regard. Section 2 of the Act confirms that no one may assume a person lacks capacity by mere reference to their age, appearance or any condition or aspect of their behaviour.

No one can assume that a person cannot make a decision for themselves simply because they have a disability, or because they are unable to make more complicated decisions or have been unable to make similar decisions in the past.

The Court of Protection

The new Court of Protection was established under the Mental Capacity Act 2005. The Court will help people to resolve disagreements regarding what is best for a person without capacity. This may include, for example whether or not a person lacking capacity should have an operation (especially if the family and doctors are unable to agree), or how their money should be handled.

Deputies

The Court of Protection is able to appoint Deputies in order to make certain decisions. A Deputy will only be appointed if it is in the best interests of the person lacking capacity.

Lasting Power of Attorney

The Act allows a person to appoint an Attorney to act on their behalf if they should lose capacity in the future. This is a new addition to the existing Enduring Power of Attorney (EPA) which is limited to property and money whereas the LPA now covers health and welfare issues.

Office of the Public Guardian

The OPG is essentially the administration arm of the Court of Protection. The OPG will help the Court of Protection by looking after the paperwork and applications for Deputies and LPAs.

Author: Matthew Heap, Partner, Serious Law