The Mental Capacity Act 2005
| Published date | 01 August 2005 |
| Date | 01 August 2005 |
| Pages | 44-48 |
| DOI | https://doi.org/10.1108/14668203200500012 |
| Author | Alison Brammer |
| Subject Matter | Health & social care,Sociology |
44 ©Pavilion Publishing (Brighton) Limited The Journal of Adult Protection Volume 7 Issue 2 • August 2005
The Mental Capacity Act 2005 received the Royal assent on 7
April 2005, prior to dissolution of Parliament for the general
election. Key elements of this long-awaited Act may be traced
back to the recommendations of the Law Commission
consultation exercise that began in 1989. Ten years later, in
1999, the government published Making Decisions: The
Government’s proposals for making decisions on behalf of
mentally incapacitated adults (LCD) and made a rather
disappointing commitment to legislate ‘when Parliamentary
time allows’. Government attention then focussed on
proposals to reform mental health law until publication of a
draft Mental Incapacity Bill in June 2003. In the interim
pressurefor reform was maintained and a number of useful
guides to the existing law on capacity and decision making
werepublished by the Department of Health. The draft Bill
was reviewed and reported on by a Joint Scrutiny Committee
and the Department of Constitutional Affairs published the
government’s response in February 2004. A draft Code of
Practice to accompany the Act was published in September
2004. A number of amendments wereto made to the Bill
which ultimately became the Act, including a significant
change to the name of the Act from Mental Incapacity to
Mental Capacity.The Act applies to England and Wales –
similar legislation already exists in Scotland in the form of the
Adults with Incapacity (Scotland) Act 2000.
Asummary of the main provisions of the Act are set out in
this column. It is important to note that the Act is not
expected to be implemented before 2007. The existing law
relating to mental capacity and decision making pertains until
the Act is brought into force. This rests largely on common
law principles, (ie those developed through case law rather
than statute), such as the presumption in favour of capacity. It
is likely that we will continue to see applications for High
Court declarations determining disputes as to the best
interests of individuals who do not have capacity to make
particular decisions.
The preamble to the Act describes it as,
Alison Brammer
Legal column
To continue reading
Request your trial