2005 Chapter 9

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These notes refer to the Mental Capacity Act 2005 (c.9) which received Royal Assent on 7 April 2005

MENTAL CAPACITY ACT

     EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Mental Capacity Act 2005 which received Royal Assent on 7 April 2005. They have been prepared by the Department for Constitutional Affairs and the Department of Health in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a provision or part of a provision does not seem to require any explanation or comment, none is given.

SUMMARY AND BACKGROUND

3.     The Act has its basis in the Law Commission Report No.231 on Mental Incapacity, which was published in February 1995 after extensive consultation. The Government consulted further and published a Policy Statement, Making Decisions, in October 1999, setting out proposals to reform the law in order to improve and clarify the decision-making process for people unable to make decisions for themselves. On 27 June 2003 the Government published a draft Mental Incapacity Bill and accompanying notes (Cm 5859-I & II) which was subject to pre-legislative scrutiny by a Joint Committee of both Houses. The Joint Committee published their report on 28 November 2003 (HL Paper 189-I & HC 1083-I). The Government's response to the Joint Committee report was presented to Parliament in February 2004 (Cm 6121). The renamed Mental Capacity Bill was introduced in Parliament on 17 June 2004 and received Royal Assent on 7 April 2005, having been carried over from the previous session.

4.     The Act aims to clarify a number of legal uncertainties and to reform and update the current law where decisions need to be made on behalf of others. The Act will govern decision-making on behalf of adults, both where they lose mental capacity at some point in their lives, for example as a result of dementia or brain injury, and where the incapacitating condition has been present since birth. It covers a wide range of decisions, on personal welfare as well as financial matters and substitute decision-making by attorneys or court-appointed "deputies", and clarifies the position where no such formal process has been adopted. The Act includes new rules to govern research involving people who lack capacity and provides for new independent mental capacity advocates to represent and provide support to such people in relation to certain decisions. The Act provides recourse, where necessary, and at the appropriate level, to a court with power to deal with all personal welfare (including health care) and financial decisions on behalf of adults lacking capacity.

5.     The Act replaces Part 7 of the Mental Health Act 1983 and the whole of the Enduring Powers of Attorney Act 1985. A new Court of Protection with more comprehensive powers will replace the current Court of Protection, which is an office of the Supreme Court.

The Act

6.     The Act is divided into 3 parts.

Part 1: Persons who lack capacity

7.     Part 1 contains provisions defining "persons who lack capacity". It contains a set of key principles and sets out a checklist to be used in ascertaining a person's best interests. It deals with liability for actions in connection with the care or treatment of a person who lacks capacity to consent to what is done. Part 1 also establishes a new statutory scheme for "lasting" powers of attorney which may extend to personal welfare (including health care) matters. It sets out the jurisdiction of the new Court of Protection to make declarations and orders and to appoint substitute decision-makers ("deputies"), where a person lacks capacity. This Part also sets out rules about advance decisions to refuse medical treatment and creates new safeguards controlling many types of research involving people who lack capacity. It establishes a system for providing independent mental capacity advocates for particularly vulnerable people. It also provides for codes of practice to give guidance about the legislation and creates a new offence of neglect or ill-treatment.

Part 2: The Court of Protection and the Public Guardian

8.     Part 2 establishes a new superior court of record, to be known as the Court of Protection, and provides for its judges and procedures. It also establishes a new statutory official, the Public Guardian, to support the work of the court. Provision is also made for Court of Protection Visitors.

Part 3: Miscellaneous and General

9.     Part 3 deals with private international law and transitional and other technical provisions and includes a declaratory provision that nothing in the Act is to be taken to affect the law relating to unlawful killing or assisting suicide. ECHR issues arise in relation to a number of provisions.

COMPATIBILITY WITH ECHR

10.     The Act meets the state's positive obligation under Article 8 of the European Convention on Human Rights ("ECHR") to ensure respect for private life. ECHR issues arise in relation to a number of provisions.

11.     Article 8 issues in relation to private life are engaged in connection with sections 5, 6, 9 and 11 and could also be engaged as a result of section 20 and a court order made under section 16(2). Any interference pursues the legitimate aim of protecting the health and wellbeing of the person lacking capacity and ensures that those who care for and treat persons who lack capacity are protected from certain liabilities where appropriate. The principles in section 1, the criteria for lack of capacity (section 2), the checklist as to best interests (section 4) and the safeguards within the sections themselves create a framework within which any interference will be proportionate to this legitimate aim. Article 8 rights may also be engaged by section 49(7) to (9), which allows the court to direct a medical examination or interview of the person concerned and the examination of his health and social services records: the court is bound by the principles in section 1 and the best interests checklist. Sections 35(6), 58(5) and (6) and 61(5) and (6) also make provision whereby particular persons may interview the person concerned and examine relevant records. Again, any interference is justified as being for the protection of that person's own health and welfare and proportionate to that aim. The powers are given to the relevant officials for the purpose of enabling them to carry out their functions, which are directed to the protection of the interests of the person who lacks capacity.

12.     Rights under Article 1 of the First Protocol may be engaged in connection with sections 7 to 9 and 12 which provide for the control of a person's property and affairs and payment on his behalf for necessary goods and services. The statutory rules are intended to be clear and precise and are designed to strike a fair balance between the property interests of the person lacking capacity, his own wider welfare interests and the interests of others (persons supplying necessary goods and services to the person lacking capacity, anyone bearing the cost and, in the case of section 12, persons related to or connected with him).

13.     Sections 10(2) and 13(8) and (9) prevent a bankrupt from acting as a donee of a lasting power of attorney (an "LPA") where the power covers property and affairs and suspend that power where there is an interim bankruptcy restrictions order. Interim bankruptcy restrictions orders will not bring an LPA to an end; but the appointment and power would be suspended (as far as it concerns the donor's property and affairs) so long as the order has effect. Bankruptcy restrictions orders are provided for in Schedule 4A to the Insolvency Act 1986. Article 8 and Article 14 rights may be engaged but any difference of treatment has the legitimate aim of protecting an incapacitated donor from the possibility of financial abuse and is proportionate to that end.

14.     A donee of an LPA can be given power to refuse to give consent to life-sustaining treatment on behalf of the donor (see section 11(7) and (8)). The donor's Article 2 and Article 3 rights could be engaged. A person can also make an advance decision to refuse treatment, including life-sustaining treatment. Section 25(5) provides that an advance decision will not apply to any treatment necessary to sustain life unless the advance decision is in writing and is signed and the signature is witnessed. Further, there must be a statement that the decision stands even if life is at risk (and this statement must also be in writing and be signed and the signature must be witnessed). Sections 6(7) and 26(5) provide that action can be taken to preserve life or prevent serious deterioration while the court resolves any dispute or difficulty. These provisions are designed to protect a person's Article 2 and 3 rights, while also discharging the obligation to respect the Article 8 rights of those who choose to give powers to a donee under an LPA or to make an advance decision.

15.     Sections 35 to 39 may engage Article 14 rights in connection with Article 8 by providing for an independent mental capacity advocate to represent and support people who lack capacity where they are being treated and cared for by the NHS or a local authority and there is no one who could be consulted about that treatment or care. Any relevant difference in treatment which there might be would have the legitimate aim of protecting the Article 8 rights of incapacitated persons.

16.     The comprehensive jurisdiction of the new Court of Protection (sections 15 to 21 and 45 to 56) ensures protection for any rights engaged in connection with the provisions of the Act. The Government is satisfied that sections 50 (certain applicants to obtain permission to apply), 51(2)(d) (exercise of jurisdiction by officers or staff) and 54 (court fees) do not breach Article 6 rights.

TERRITORIAL EXTENT

17.     The Act extends only to England and Wales. Two exceptions are set out in section 68(5) and concern evidence of instruments and registration of LPAs. The amendments and repeals made by Schedules 6 and 7 will have the same extent as the enactments concerned.

18.     Similar legislation has already been passed in Scotland in the form of the Adults with Incapacity (Scotland) Act 2000.

TERRITORIAL APPLICATION: WALES

19.     The National Assembly for Wales may make regulations under section 30 (research) and section 34 (loss of capacity during research project) and issue guidance under section 32(3). It may also make regulations under section 35 (appointment of independent mental capacity advocates), section 36 (functions of independent mental capacity advocates), section 37 (provision of serious medical treatment by NHS body) and 41 (power to adjust role of independent mental capacity advocate). Section 68(2) provides that sections 30 to 41 will come into force by order made by the National Assembly. Section 43(1) provides that the National Assembly must be consulted by the Lord Chancellor before a code of practice is prepared or revised.

COMMENTARY ON SECTIONS

PART 1: PERSONS WHO LACK CAPACITY

The principles

Section 1: The principles

20.     This sets out key principles applying to decisions and actions taken under the Act. The starting point is a presumption of capacity. A person must be assumed to have capacity until it is proved otherwise. A person must also be supported to make his own decision, as far it is practicable to do so. The Act requires "all practicable steps" to be taken to help the person. This could include, for example, making sure that the person is in an environment in which he is comfortable or involving an expert in helping him express his views. It is expressly provided that a person is not to be treated as lacking capacity to make a decision simply because he makes an unwise decision. This means that a person who has the necessary ability to make the decision has the right to make irrational or eccentric decisions that others may not judge to be in his best interests (see section 3). Everything done, or decision made, under the Act for a person who lacks capacity must be done in that person's best interests. This principle is expanded upon in section 4. In addition, the "least restrictive option" principle must always be considered. The person making the decision or acting must think whether it is possible to decide or act in a way that would interfere less with the rights and freedom of action of the person who lacks capacity.

Preliminary

Section 2: People who lack capacity

21.     This sets out the Act's definition of a person who lacks capacity. It focuses on the particular time when a decision has to be made and on the particular matter to which the decision relates, not on any theoretical ability to make decisions generally. It follows that a person can lack capacity for the purposes of the Act even if the loss of capacity is partial or temporary or if his capacity fluctuates. It also follows that a person may lack capacity in relation to one matter but not in relation to another matter.

22.     The inability to make a decision must be caused by an impairment of or disturbance in the functioning of the mind or brain. This is the so-called "diagnostic test". This could cover a range of problems, such as psychiatric illness, learning disability, dementia, brain damage or even a toxic confusional state, as long as it has the necessary effect on the functioning of the mind or brain, causing the person to be unable to make the decision.

23.     Subsection (3) introduces a principle of equal consideration in relation to determinations of a person's capacity. It makes it clear that such determinations should not merely be made on the basis of a person's age, appearance or unjustified assumptions about capacity based on the person's condition or behaviour. Any preconceptions and prejudicial assumptions held by a person making the assessment of capacity must therefore have no input into the assessment of capacity. The reference to "condition" captures a range of factors, including any physical disability a person may have. So, in making an assessment of capacity, the fact that the person in question has a learning difficulty should not in itself lead the person making the assessment to assume that the person with the learning difficulty would lack capacity to decide, for example, where to live. The reference to "appearance" would also include skin colour.

24.     Subsection (5) makes it clear that powers under the Act generally only arise where the person lacking capacity is 16 or over (although powers in relation to property might be exercised in relation to a younger person who has disabilities which will cause the incapacity to last into adulthood: see section 18(3)). Any overlap with the jurisdiction under the Children Act 1989 can be dealt with by orders about the transfer of proceedings to the more appropriate court (see section 21).

25.     Subsection (5) has the first use of the capital letter "D" to refer to a person exercising powers in relation to a person who lacks capacity. The use of capital letters sometimes makes complex provisions easier to follow (particularly where a number of different people are being referred to), and is a technique often adopted in recent legislation. In this Act, the fact that lack of capacity is specific to particular decisions and that there are many reasons why a person may lack capacity makes it necessary to use a neutral, rather than descriptive, label for the person concerned.

Section 3: Inability to make decisions

26.     This sets out the test for assessing whether a person is unable to make a decision about a matter and therefore lacks capacity in relation to that matter. It is a "functional" test, looking at the decision-making process itself. Four reasons are given why a person may be unable to make a decision. The first three (subsection (1)(a) to (c)) will cover the vast majority of cases. To make a decision, a person must first be able to comprehend the information relevant to the decision (further defined in subsection (4)). Subsection (2) makes clear that a determination of incapacity may not be reached without the relevant information having been presented to the person in a way that is appropriate to his circumstances. Secondly, the person must be able to retain this information (for long enough to make the decision, as explained in subsection (3)). And thirdly, he must be able to use and weigh it to arrive at a choice. If the person cannot undertake one of these three aspects of the decision-making process then he is unable to make the decision.

27.     Subsection (1)(d) provides for the fourth situation where someone is unable to make a decision namely where he cannot communicate it in any way. This is intended to be a residual category and will only affect a small number of persons, in particular some of those with the very rare condition of "locked-in syndrome". It seems likely that people suffering from this condition can in fact still understand, retain and use information and so would not be regarded as lacking capacity under subsection (1)(a) to (c). Some people who suffer from this condition can communicate by blinking an eye, but it seems that others cannot communicate at all. Subsection (1)(d) treats those who are completely unable to communicate their decisions as unable to make a decision. Any residual ability to communicate (such as blinking an eye to indicate "yes" or "no" in answer to a question) would exclude a person from this category.

Section 4: Best interests

28.     It is a key principle of the Act that all steps and decisions taken for someone who lacks capacity must be taken in the person's best interests. The best interests principle is an essential aspect of the Act and builds on the common law while offering further guidance. Given the wide range of acts, decisions and circumstances that the Act will cover, the notion of "best interests" is not defined in the Act. Rather, subsection (2) makes clear that determining what is in a person's best interests requires a consideration of all relevant circumstances (defined in subsection (11)). Subsection (1) makes clear that best interests determinations must not be based merely on a person's age, appearance, or unjustified assumptions about what might be in a person's best interests based on the person's condition or behaviour. Best interests determinations must not therefore be made on the basis of any unjustified and prejudicial assumptions. For example, in making a best interests determination for a person who has a physical disability it would not be acceptable to assume that, because of this disability, they will not have a good quality of life and should therefore not receive treatment. As with section 2(3) the references to "condition" and "appearance" capture a range of factors. The section goes on to list particular steps that must be taken. Best interests is not a test of "substituted judgement" (what the person would have wanted), but rather it requires a determination to be made by applying an objective test as to what would be in the person's best interests. All the relevant circumstances, including the factors mentioned in the section must be considered, but none carries any more weight or priority than another. They must all be balanced in order to determine what would be in the best interests of the person concerned. The factors in this section do not provide a definition of best interests and are not exhaustive.

29.     The decision-maker must consider whether the individual concerned is likely to have capacity at some future date (subsection (3)). This is in case the decision can be put off, until the person can make it himself. Even if the decision cannot be put off, the decision is likely to be influenced by whether the person will always lack capacity or is likely to regain capacity.

30.     Subsection (4) provides that the person concerned must so far as possible be involved in the process. Even where a person lacks capacity he should not be excluded from the decision-making process.

31.     Subsection (5) applies to determinations as to whether treatment that is necessary to sustain life is in the best interests of the person concerned. It provides that the decision-maker must not be motivated by a desire to bring about the person's death. This means that whatever a decision-maker personally feels about, or wants for, the person concerned this must not affect his assessment of whether a particular treatment is in the person's best interests. This subsection does not change the previously understood common law on best interests. It does not mean that doctors are under an obligation to provide, or to continue to provide, life-sustaining treatment where that treatment is not in the best interests of the person.

32.     The decision-maker must also consider, as far as is reasonably ascertainable, the "past and present wishes and feelings" of the person concerned (subsection (6)). Such wishes and feelings would include any relevant written statement. Even where people cannot make their own decisions, they can express preferences and feelings which should be taken seriously. For those who have lost capacity (for example because of progressive dementia) it may be particularly important to consider past wishes and feelings as well as current ones. In particular, there must be consideration of written statements made by the person whilst he had capacity. Such statements may be about what sort of care or treatment the person would wish to have in the case of future illness. Where written statements are well-thought out and considered, they are likely to carry particular weight for the purposes of best interests determinations. There must also be consideration of the person's beliefs and values - religious beliefs, cultural values and lifestyle choices are obvious aspects of this. There may also be other factors that the person would have been likely to consider if able to do so. For example, a person with capacity will often consider emotional bonds or family obligations when deciding how to spend his money or where to live.

33.     Subsection (7) specifies who should be consulted when making a best interests determination, recognising that they will often have important information and views as to what would be in the person's best interests. They will also often have information about the past and present wishes and feelings of the person concerned, his beliefs and values and other factors he would be likely to consider were he able to do so. The decision-maker should consult anyone the person concerned has named as someone to consult and anyone who has a caring role or is interested in his welfare. This will include informal carers, family and friends and others who care for the person in a professional or voluntary capacity, including any kind of existing advocate. Anyone appointed under an LPA and any deputy appointed by the court (dealt with later in Part 1) should also be consulted. Consultation is required where it is "practicable and appropriate". For example, no consultation may be possible in an emergency situation and it might not be appropriate for every day-to-day decision (such as whether to watch television). For significant, non-urgent, decisions, including where there is a series of minor decisions that cumulatively become significant, consultation will be required, as being both practicable and appropriate.

34.     Subsection (8) applies the best interests principle to situations where the person concerned may not lack capacity. A donee may be acting under a lasting power of attorney while the donor still has capacity. The subsection makes clear that the obligation also applies where the person concerned does not in fact lack capacity but where the other person reasonably believes that he does lack capacity. There would otherwise be a lacuna in the applicability of the best interests test.

35.     Subsection (9) offers appropriate protection to those who act in the reasonable belief that they are doing so in the other person's best interests. It should be remembered that "reasonable belief" is an objective test. Where the court makes a decision it must of course be satisfied that its decision is indeed in the person's best interests.

36.     Subsection (11) explains what relevant circumstances means in the context of considering a person's best interests. The person making the determination must consider those circumstances of which he is aware and which it would be reasonable to regard as relevant. This strikes a balance by acknowledging that the decision-maker cannot be expected to be aware of everything whilst stipulating that he must take into account factors that it is reasonable to regard as relevant.

Section 5: Acts in connection with care or treatment

37.     This provides statutory protection against liability for certain acts done in connection with the care or treatment of another person. If an act qualifies as a "section 5 act" then a carer can be confident that he will not face civil liability or criminal prosecution. Civil liability could involve being sued for committing a tort such as battery, false imprisonment or breach of confidence. Criminal prosecution might be for an offence against the person (assault or causing actual bodily harm) or for an offence against property (theft).

38.     A qualifying "section 5 act" may be performed by a range of people on any one day. The key requirements are that the person ("D") acts in connection with the care or treatment of another person ("P") and that D has formed a reasonable belief as to P's lack of capacity and best interests.

39.     D will not incur any liability which would not have arisen if P, with capacity to do so, had in fact consented to D's act. Consent is a complete defence to a wide range of torts (battery, false imprisonment, trespass to land or goods, breach of confidence) and to many offences against the person or against property. Many people who are fully capable will regularly consent (expressly or impliedly) to others touching them, locking the doors of a car or dealing with their property. If a person takes someone else's unwanted clothes to a charity shop he could, in the absence of the owner's consent, in principle face civil liability for trespass to goods or criminal prosecution for theft. This section offers protection against liability where the owner is unable to give a valid consent, as long as the step is taken in connection with caring for him and is in his best interests.

40.     Consent is not a defence to a claim in the tort of negligence. There are some offences which depend on a finding of negligence as defined in civil law (most notably, manslaughter where the element of unlawful killing may be made out by grossly negligent behaviour, whether an act or an omission to act in breach of duty). Consent might be relevant to issues of contributory negligence. Subsection (3) therefore makes it clear that liability for negligence is unaffected by the section.

41.     This section does not affect the operation of advance decisions to refuse treatment, as covered by sections 24 to 26. If a person has made a valid and applicable advance decision then that takes priority over the rules in this section.