PROTECTION, POWERS, DEFENCE AND DUTIES
‘The Mental Capacity Act 2005 established a comprehensive scheme for decision-making on behalf of people who are unable to make the decision for themselves. The decision-maker - whether a carer, donee of a power of attorney, court-appointed deputy or the court - stands in the shoes of the person who is unable to make the decision - known as P - and makes the decision for him. The decision has to be that which is in the best interests of P.’
Supreme Court judgment, N v ACCG& Ors [2017] UKSC 22
The Mental Capacity Act 2005 provides a statutory framework for assessing whether a person has mental capacity to make certain decisions. It also defines how others can make decisions on behalf of those who lack mental capacity to decide for themselves. Its scope is wide-ranging, involving decisions regarding healthcare, social care and financial affairs. The Act directly addresses the issue of providing care and treatment for people who lack the mental capacity to consent to it.
Prior to the legislation being introduced, such decisions lacked legal protection unless they followed the common law rules relating to mental capacity and best interests. These common law rules were derived from previous cases that had been to court in which judges had set out how mental capacity should be assessed and given guidance in relation to making best interest decisions. However, many health and social care staff were unaware of these court cases governing assessments of mental capacity and best interests decision-making. This resulted in assessments with no basis in law and consequently no legal protection for staff or the individuals they assessed. It was not uncommon for assessments of mental capacity to be unlawful because they were based solely on a person’s diagnosis, for example a doctor might decide that someone lacked mental capacity just because they had dementia. Other assessments had been based solely on inappropriate testing, such as psychiatric assessments establishing a mental health diagnosis, a mini mental state examination or an IQ test where low results were seen to equate to a lack of mental capacity. Although these were important tests for different purposes, for example obtaining a diagnosis, they were unlawful ways to assess mental capacity.
The Act resolved this problem by clearly defining how to assess mental capacity and best interests. The legislation can be seen as working in a number of ways – providing protection, a defence, powers and duties.
Protection
The Act provides protection for people whose mental capacity is called into question. As indicated above, it was not
