This chapter provides a summary of the Mental Capacity Act 2005 (MCA) and its Code of Practice in certain areas detailed under Part 1 of the Act. More comprehensive details about each aspect of the Act can be found in the relevant sections of the Act and the corresponding summaries in the Code of Practice (Department for Constitutional Affairs, 2007). Referencing is provided where aspects of this chapter stray from the details of the Act and its Code.
Part 1 of the legislative framework of the MCA contains a number of provisions, including those relating to:
• acts in connection with care and treatment – a general (statutory) authority to act reasonably when providing care and treatment (sections 5 and 6)
• provisions for paying for necessities (sections 7 and 8)
• lasting powers of attorney (sections 9–14)
• the jurisdiction of the Court of Protection (sections 15–23)
• advance decisions to refuse treatment (sections 24–26)
• excluded decisions (sections 27–29), including treatment for mental disorder under Part 4 of the Mental Health Act 1983
• research (sections 30–34)
• the independent mental capacity advocate service (sections 35–41)
• codes of practice (section 42)
• codes of practice: procedure (section 43)
• the offence of ill-treatment or neglect (section 44), the ill-treatment or wilful neglect of a person who lacks capacity carries a term of imprisonment of up to 5 years.
Part 2 of the MCA establishes:
• a new superior court of record called the Court of Protection, with its judges and procedures (sections 45–56); this Court provides a definitive legal judgment when necessary, and can determine: the validity or otherwise of any document or decision made regarding a person lacking capacity; an individual's capacity or otherwise to make a particular decision; ‘best interests’
• a new statutory official, the Public Guardian, to support the work of the Court (sections 57–60)
• Court of Protection visitors (section 61).
In accordance with sections 42–43 of the MCA, the Code of Practice was issued by the Department of Constitutional Affairs (now the Ministry of Justice) in April 2007, after a period of consultation. It explains the day-today operation of the Act and provides useful real-life examples for professionals and non-professionals on how to apply the legislation in practice. The Code has statutory force.