The Court of Protection & The Mental Capacity Act 2005


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Thank you very much for your support and assistance over the past few days, and especially for your excellent handling of the tribunal, very much appreciated.

Mental Health Law Client

The Mental Capacity Act 2005 became law on 1st October 2007. 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 Mental Capacity Act 2005, and the Court of Protection, exist to protect the best interests of people who lack mental capacity. The 2005 Act was amended by the Mental Health Act 2007, with new Deprivation of Liberty Safeguards introduced in April 2009, which gave new protection for people lacking capacity in situations where they have been deprived of liberty (for example in a situation where someone is kept from leaving a hospital or a care home, this must be shown to be in the person’s best interests).

The five principles of the Mental Capacity Act 2005

The Mental Capacity Act sets out five main principles to be followed in dealing with people who may be considered to 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 a person who lacks capacity to make their own decisions 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
The Mental Capacity Act sets out a test for assessing someone’s mental capacity to take a decision. The test is ‘decision-specific’, which means the test is of whether the person can make the decision that needs to be made at the time it needs to be made. Incapacity can’t be assumed from someone’s diagnosis or behaviour. To be able to make a decision, someone has to be able to:

  • understand and retain information relevant to the decision
  • use the information in making the decision, which might include weighing options
  • communicate their decision – this doesn’t have to be verbal communication: it could include other means of communication, such as signing or writing things down.

[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
The Mental Capacity Act 2005 sets out that nobody can take a decision on behalf of someone who lacks capacity without first doing everything practicable to help them to decide for themselves. This might include things like using simple language or other methods to help the person understand, retain and use the information needed to make the decision.

[3] A person is not to be treated as unable to make a decision merely because he makes an unwise decision
It is important to recognise the difference between incapacity and having made a bad or unwise decision, which everyone does now and again. Having the capacity to make a decision goes hand in hand with the possibility that the decision made may not be one that all around us agree with.

[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
The Mental Capacity Act lists the factors that decision makers are required to work through, in order to make a decision in a person’s best interests. These include taking consideration of the person’s wishes and feelings and their values and beliefs, so far as they can be known, as well as consulting with others involved in the person’s care.

A person may make a written statement about their wishes, feelings, beliefs and values prior to losing mental capacity and this is something the decision maker would be expected to take into consideration when making a decision in the person’s 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.
The Mental Capacity Act 2005 protects the interests of those who lack capacity, and this includes safeguards against imposing restrictions upon people lacking capacity where there are other options. In April 2009 a range of Deprivation of Liberty Safeguards (DoLS) were introduced that protect people lacking capacity from being deprived of liberty without the authorisation of a ‘supervisory body’ – a Local Authority or Health Trust depending on whether the person is in a care home or a hospital.

The Principles are excerpted from the Mental Capacity Act 2005, Part 1


Recognition for our Court of Protection team

  • The Yorkshire Legal Awards 2015 - Highly Commended - Managing Partner of the Year

What our clients say…

Thank you very much for your support and assistance over the past few days, and especially for your excellent handling of the tribunal, very much appreciated.

Mental Health Law Client

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