Mental Health Act 2005

The Mental Capacity Act 2005 provides a statutory framework to empower and protect vulnerable people who are generally aged 16 or over, who are not able to make their own decisions for themselves, for example, people with dementia, learning disabilities, mental health problems, stroke or head injuries.

The Act will cover major decisions about someone’s property and affairs, healthcare treatment and where the person lives, as well as everyday decisions about personal care (such as what someone may eat), where the person lacks capacity to make the decision themselves.

Mental Capacity Act 2005 Code of Practice

The Act enshrines in statute current best practice and common law principles concerning people who lack mental capacity and those who make decisions on their behalf.

The Act deals with the assessment of a person’s capacity and acts by carers of those who lack capacity:

  • Assessing Lack of Capacity

  • Best Interests

  • Acts in connection with care or treatment

  • Restraint

The Act deals with two situations where a designated decision-maker can act on behalf of someone who lacks capacity:

  • Lasting Powers of Attorney (LPAs)

  • Court appointed Deputies

The Act creates a new public body and a new official to support the statutory framework, both of which will be designed around the needs of those who lack capacity:

  • A new Court of Protection

  • A new Public Guardian

The Act also includes three further key provisions to protect vulnerable people:

  • Independent Mental Capacity Advocate (IMCA)

  • Advance decisions to refuse treatment

  • A criminal offence

The Act also sets out clear parameters for research.

The Act will apply:

  • At home

  • In Hospital

  • In Care Homes

  • GP and Dental Surgeries

  • Voluntary Service Settings

The Act covers personal welfare decisions, i.e. Health and social care decisions including:

  • Washing, Dressing, help with Eating

  • Nursing Care

  • Occupational Therapy, Physiotherapy,

  • Chiropody

  • Home Care Services

  • Social Care provided by voluntary groups

  • Moving to a care home or other accommodation

  • Contact a person has with others (Court of Protection)

  • Medical or Dental Treatment, Diagnostic Tests

The whole Act is underpinned by a set of five principles

  • A presumption of capacity – every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless proved otherwise;

  • Individuals being supported to make their own decisions – a person must be given all practicable help before anyone treats them as not being able to make their own decisions;

  • Unwise decisions – just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision;

  • Best Interests – an act done or decision made under the Act for or on behalf of a person who lacks capacity must be done in their best interests; and

  • Least Restrictive Option – anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.

Further Information

Free newsletters – makingdecisions@dco,

The Mental Capacity Act 2005 & The Code of Practice

Information on IMCA Service

Information Booklets on Making Decisions

Or call 023 80 878038