The five principles are outlined in the Section 1 of the Act. These are designed to protect people who lack capacity to make particular decisions, but also to maximise their ability to make decisions, or to participate in decision-making, as far as they are able to do so.
Summary of other key elements of the Act
The Act makes provision for people to plan ahead for a time when they may need support. This introduces advanced decisions to refuse treatment.
The decision under consideration must be time and decision specific.
The Act upholds the principle of Best Interest for the individual concerned.
A Court of Protection will help with difficult decisions. The , the administrative arm of the Court of Protection, will help the Act work.
An service will provide help for people who have no intimate support network.
S of The Act makes it a criminal offence to wilfully neglect someone without capacity.
The Act generally applies only to those over the age of 16 years, although may apply to some younger people if it is supposed that their capacity will continue to be impaired into adulthood.
Section 68: Commencement and extent
The following orders have been made under this section:
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Timetable of new features
The new measures that the Act introduced were: April 2007
A new criminal offence of wilful neglect of a person without capacity
In response to the ruling by the European Court of Human Rights in HL v UK the Act was amended by the Mental Health Act 2007 in July that year. These additions are known as the Deprivation of Liberty Safeguards, and were implemented in April 2009. These amendments created administrative procedures to ensure the Act's processes are observed in cases of adults who are, or may be, deprived of their liberty in care homes or hospitals, thus protecting health and social care providers from prosecution under human rights legislation. Key elements of the DoLS are that the person must be provided with a representative and given the right to challenge the deprivation of liberty through the Court of Protection, and that there must be a mechanism for the deprivation of liberty to be reviewed and monitored regularly. The DoLS were introduced in response to the Bournewood case, on which the European Court of Human Rights ruled in October 2004 that a detention of an incapacitated patient which did not comply with Article 5 of the European Convention on Human Rights had taken place; in particular, a person who is detained must be told the reasons for the detention and must also, under Article 5, have the right of speedy access to a court to appeal against the detention.
Mental Capacity (Amendment) Bill 2019
The . This act will replace DoLS with a new legal framework called Liberty Protection Safeguards. These will be used for anyone 16 or above who lacks capacity rather than 18 as previously used in DoLS. The "acid test' from the Cheshire West case remains, there is still not statuary definition of deprivation of liberty. Target date for implementation is October 2020.
