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Mental Capacity Act 2005 by Mind Map: Mental Capacity Act 2005
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Mental Capacity Act 2005


Full text


Explanatory Notes

A new Court of Protection

to make new substitute decision-makers ('deputies').

The Act replaces all of Part 7 of the MHA 1983

Replaces all of the Enduring Powers of Attorney Act 1985

new statutory scheme for "lasting" powers of attorney which may extend to personal welfare (including health care) matters

Checklist for determining best interests

Liability for actions in connection with care of persons without capacity

sets out rules about advance decisions to refuse medical treatment

new safeguards controlling many types of research involving people who lack capacity.

Key features

Part 1 People who lack capacity


Preliminary, People who lack capacity, Inability to make decisions, Best interests, Acts in connection with care or treatment, Section 5 acts: limitations, Payment for necessary goods and services, Expenditure

Lasting powers of attorney

General powers of the court and appointment of deputies

Powers of the court in relation to lasting powers of attorney

Advance decisions to refuse treatment

Excluded decisions


Independent mental capacity advocate service

Miscellaneous and supplementary, codes of practice

Part 2 Court of Protection and the Public Guardian

The Court of Protection

Supplementary powers

Practice and Procedure

Fees and Costs

The Public Guardian

Court of protection visitors

Part 3 Miscellaneous and General

Section 1: The principles

persons assumed to have capacity unless it is established that there is a lack of capacity

person 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.

person is not to be treated as unable to make a decision merely because he makes an unwise decision.

An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

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.

Section 2: People who lack capacity

Section 3: Inability to make decisions

Inability if unable -

[3(1)a] to understand the information relevant to the decision

[3(1)b] to retain that information

[3(1)c] to use or weigh that information as part of the process of making the decision, or

[3(1)d] to communicate his decision by any means

Ability to understand

[3(2)] will exist if person can understand the information relevant to a decision if it is presented in a way that is appropriate to circumstances


[3(3)] - retaining relevant information for a short period does not negate person being regarded as capable of the decision

Section 4. Best Interests

Must consider

S 4(3), (a)whether it is likely that the person will at some time have capacity in relation to the matter in question, and, (b) if it appears likely that he will, when that is likely to be.

S4(6), (a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),, (b) the beliefs and values that would be likely to influence his decision if he had capacity, and, (c) the other factors that he would be likely to consider if he were able to do so.

Take into account

(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,

(b) anyone engaged in caring for the person or interested in his welfare,

(c) any donee of a lasting power of attorney granted by the person, and

(d) any deputy appointed for the person by the court,

S4(4)Must act

so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

S4(5) Prohibition

Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

Section 9 - 14: Lasting Powers of Attorney

Clear statutory procedures for donor and donee

Powers may be granted to one or more legal persons

S 11- Clear statement of restrictions

S12 Gifts

S13 - Revocation

S14 - Protections for donee and others