Mental Capacity Act 2005 - Overview
| Author | Michael Butler |
| Pages | 221-242 |
Part Seven
Mental Capacity Act 2005
Chapter 22
Mental Capacity Act 2005 – Overview
22.1 INTRODUCTION
The MCA 2005 stands apart from the MHA 1983 as a completely separate statutory framework. Whereas the MHA 1983 is concerned with mental disorder, the MCA 2005 is concerned with mental capacity. More specifically, it is concerned with decision-making in relation to those who lack the capacity to make decisions for themselves, those who are unable to make a decision because of ‘an impairment of, or a disturbance in the functioning of, the mind or brain’ (section 2(1) of the MCA 2005).
Decision-making is central to the MCA 2005. Although the Act may apply whenever there is a malfunctioning of the mind or brain, this is only to the extent that this affects a person’s capacity to make a decision. Where there is no decision to make, the Act serves no purpose.
Anyone caring for, or dealing with, a person aged 16 or older who lacks, or may lack the capacity to make any decision should comply with the MCA 2005. In those cases to which it applies, the Act sets out the key principles which govern decision-making, provides a statutory test for determining whether someone does, in fact, have the capacity to make a decision, and provides guidance for use in deciding how to act in their best interests if they do not. It also provides statutory protection for those making decisions in good faith on behalf of the incapacitated person, and, in cases where difficult or contentious issues need resolving, the Act provides that the Court of Protection may assist.
The scope of the MCA 2005 is considered in this chapter. Reference is made to the relationship that the Act has with the MHA 1983, since there will inevitably be circumstances to which both Acts could apply. This issue is also considered in Chapter 9 as part of a review of treatment for mental disorder under the MHA 1983, and in Chapter 23 as part of a review of DOLS.
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As with the MCA 2005, the person on behalf of whom a decision falls to be made is referred to as ‘P’.
22.2 CODE OF PRACTICE OF THE MENTAL CAPACITY ACT 2005
Although comprehensive, one of the most significant features of the MCA 2005 is that it is anything but prescriptive about day-to-day decision-making concerning those without capacity. Guidance from its accompanying Code of Practice (2005 Code) is, therefore, particularly important.
Section 42(4) of the MCA 2005 places a legal duty to have regard to the 2005 Code on anyone acting in relation to a person who lacks capacity in one or more of the following ways:
(a) as the donee of a lasting power of attorney,
(b) as a deputy appointed by the court,
(c) as a person carrying out research in reliance on any provision made by or under this Act (see sections 30 to 34),
(d) as an independent mental capacity advocate,
(da) in the exercise of functions under Schedule A1 [see Chapter 23],
(db) as a representative appointed under Part 10 of Schedule A1 [see
Chapter 23],
(e) in a professional capacity,
(f) for remuneration.
The vast majority of decision-makers, unpaid carers, family and friends are under no such legal obligation, but the reasonableness of any decision they take, and possibly, therefore, whether they are protected from liability for any acts that they carry out (see para 22.10) will be assessed according to their compliance with the 2005 Code’s guidance.
22.3 KEY PRINCIPLES OF THE MENTAL CAPACITY ACT 2005
The MCA 2005 begins (section 1) by setting out five key principles which should govern all decision-making. These are:
• A person must be assumed to have capacity unless it is established otherwise (section 1(2)).
• 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 (section 1(3)).
• A person is not to be treated as unable to make a decision merely because he makes an unwise decision (section 1(4)).
• An act done, or decision made, under the Act for or on behalf of the person who lacks capacity must be done, or made, in his best interests (section 1(5)).
• 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 (section 1(6)).
22.4 DECISIONS EXCLUDED FROM THE SCOPE OF THE MENTAL CAPACITY ACT 2005
The MCA 2005 also makes clear that certain areas of decision-making are specifically excluded from its scope.
22.4.1 Children and young people
Children (under 16)
As a rule, the MCA 2005 does not apply to anyone under the age of 16 (section 2(5)). The only two exceptions to this are:
• the Court of Protection’s power under section 16 to make decisions relating to P’s property and affairs (see para 22.12) will extend to under 16 year olds ‘if the court considers it likely that P will still lack capacity to make decisions in respect of that matter when he reaches 18’ (section 18(3));
• the offence under section 44 of the MCA 2005 of ill-treating or wilfully neglecting a person who lacks capacity applies where the victim is under the age of 16.
Young people (16 and 17 year olds)
The MCA 2005 applies to 16 and 17 year olds as it does to adults, subject to the following exceptions:
• a lasting power of attorney may not be validly created by anyone below the age of 18 (section 9(2)(c));
• an advance decision to refuse treatment may not be validly made by anyone below the age of 18 (section 24(1));
226 A Practitioner’s Guide to Mental Health Law
• the power of the Court of Protection to execute a will on behalf of P under section 18(1)(i) may not be exercised for anyone below the age of 18 (section 18(2));
• the DOLS provisions (Schedule A1) (see Chapter 23) may not be used as authorisation for the deprivation of the liberty of anyone below the age of 18 (Schedule A1, para 13).
22.4.2 Treatment regulated by the Mental Health Act 1983
The MCA 2005 may not be used to authorise medical treatment for mental disorder, or consent to a patient being given medical treatment for mental disorder, if at the time when it is proposed to treat the patient, his treatment is regulated by Part IV of the MHA 1983 (section 28(1) of the MCA 2005). In other words, if a patient is being treated for mental disorder under the MHA 1983, authority for that treatment must come from that Act and not from the MCA 2005.
ECT treatment for 16 and 17 year olds who are in hospital informally and who do not have the capacity to consent is specifically authorised under section 28(1A) of the MCA 2005. Although ECT is generally regulated by the MHA 1983, that Act does not provide authority for treatment for this particular category of patient, and the MCA 2005 therefore fills the gap.
The treatment of patients subject to a CTO (section 17A of the MHA 1983) is regulated by Part 4A of the MHA 1983, not Part IV. A CTO patient without capacity may, therefore, be treated for mental disorder under the MCA 2005 as he is not subject to the exclusion under section 28(1) of that Act. Statutory protection for decision-makers (see para 23.10) does not, however, apply in respect of patients aged 16 or over who are subject to a CTO (section 28(1B) of the MCA 2005).
22.4.3 Family relationships and similar matters
According to section 27(1) of the MCA 2005, nothing in the Act permits a decision on any of the following matters to be made on behalf of a person:
(a) consenting to marriage or a civil partnership,
(b) consenting to have sexual relations,
(c) consenting to a decree of divorce being granted on the basis of two years’ separation,
(d) consenting to a dissolution order being made in relation to a civil partnership on the basis of two years’ separation,
(e) consenting to a child’s being placed for adoption by an adoption agency,
(f) consenting to the making of an adoption order,
(g) discharging parental responsibilities in matters not relating to a child’s property,
(h) giving a consent under the Human Fertilisation and Embryology Act 1990 (c. 37),
(i) giving a consent under the Human Fertilisation and Embryology Act 2008.
22.4.4 Voting rights
According to section 29 of the MCA 2005, the Act may not be used as authorisation for voting on behalf of someone without capacity at an election for any public office or any referendum.
22.4.5 Assisted suicide
According to section 62 of the MCA 2005, the Act has no effect on the existing law relating to unlawful killing or assisting suicide.
22.5 RELEVANCE OF THE COMMON LAW TESTS FOR CAPACITY
The areas of decision-making to which the MCA 2005 will not apply are, therefore, relatively narrow, and most decisions concerning most people who lack capacity will come within its scope. Assuming this to be so, the first issue to be addressed in any case is whether the person concerned does, in fact, lack the capacity to make a particular decision, and in this respect, one of the Act’s most important features is that it now provides a statutory test for deciding capacity (see para 22.6) which may be applied in respect of any decision that needs to be made. Even so, there remain certain common law capacity tests in a variety of different areas of law which, in theory at...
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