It established a new Court of Protection whose decisions are reached through the application of principles laid out in the Act.
The Act makes provision for people to make decisions for themselves wherever possible, giving a framework for the empowerment and protection of people who lack capacity. It is important to understand that the Act, and the Court of Protection exist to protect the best interests of the person who lacks mental capacity. It was amended by the Mental Health Act 2007, with new Deprivation of Liberty Safeguards introduced in April 2009.
The Mental Capacity Act sets out five main principles to be followed in dealing with people who have lost the capacity to make decisions for themselves. The emphasis is on ensuring that all actions are as unrestrictive as possible and that the maximum effort is made to help an incapacitated person to make decisions for themselves where it is practicable. The principles of the Act are as follows:
[1] A person must be assumed to have capacity unless it is established that he lacks capacity
[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
[3] A person is not to be treated as unable to make a decision merely because he makes an unwise decision
[4] An act done, or decision made, under this Act for on behalf of a person who lacks capacity must be done, or made, in his best interests
[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.
From the Mental Capacity Act 2005, Part 1.
A full copy of the Act can be obtained at the Office of the Public Guardian website (link will open in a new window*)
*Switalskis Solicitors is not responsible for the content of external websites.