The Mental Capacity Bill Receives Royal Assent

20 April 2005
The key provisions of the Act are:
• Five key principles, which make it clear that a person should be assumed to have capacity unless proven otherwise.
• A best interest’s checklist for people acting on behalf of others. This includes consideration of the person’s wishes, feelings, beliefs and values (including any written advance statement made by them when they had capacity) and taking account of the views of their family and friends.
• Protection to carers and professionals, subject to rules and limitations, to lawfully care for someone who cannot consent without incurring liability.
• Lasting Powers of Attorney (LPA) – for people to appoint an Attorney of their choosing to act on their behalf if they should lose capacity in the future.
• For the court to appoint Deputies to make decisions on behalf of a person about matters in relation to which that person lacks capacity.
• Creation of Independent Mental Capacity Advocates to support and represent people lacking capacity who have no one else to speak for them when decisions need to be taken about serious medical treatment and long-term residential care.
• New safeguards controlling many types of research involving people who lack capacity.
• For a person whilst they have capacity, if they so wish, to make an advance decision to refuse treatment, known as living wills.
• The introduction of a criminal offence of ill treatment or neglect of a person who lacks capacity, with a maximum sentence of five years.
The Act creates two new public bodies:
• Court of Protection – the new court will have jurisdiction in relation to the Mental Capacity Act. It will have special procedures and judges.
• Public Guardian – This public official will take over from the current Public Guardianship Office. The Public Guardian will be the registering authority for lasting powers of Attorney and Deputies.
Full text for the Mental Capacity Act can be found on the (External) Department of Constitutional Affairs website.

Source: Department for Constitutional Affairs

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