The Mental Capacity Act (2005) takes effect from April 2007. Evaluate how this legislation will enable individuals who are considered to lack capacity, to make decisions about their lives.

Authors Avatar

The Mental Capacity Act (2005) takes effect from April 2007. Evaluate how this legislation will enable individuals who are considered to lack capacity, to make decisions about their lives.

In this essay I am going to discuss the current law on mental capacity and how it affects the individuals who lack capacity. I am then going to discuss the mental capacity Act (2005) which is going to take effect in April 2007. I will be looking at issues such as decision making and how it gives individuals the rights to make decisions regarding themselves even though they are considered to lack capacity.

In 1983 the Mental Health Act was established. This sought to protect the interest of patients and produced a code of practice. There are many uncertainties in the law in the recognition of the rights of adults who lack capacity, the uncertainty in the law has formed a new legislation which has been introduced. The government has introduced a new Bill which will amend Mental Health Act 1983. The issue of capacity is very crucial as it considers whether a person can legally make a decision or not. It was not until October 1999 that the Government published a policy statement about making decisions, these proposals were to improve the decision making process for people who lacked capacity to do so. In June 2003 a draft of Mental Incapacity Bill was reformed and later reviewed. A code of practice was then published in 2004. A number of amendments were made especially the change of name from ‘Mental Incapacity’ to ‘Mental capacity’. (Stationary office, 2005, pg2)

However this does not cover mental illness. Mental capacity and mental illness are very different.  Mental capacity is not fixed. A person may have the capacity to make decisions in some areas and in other will not. A person with mental illness will not have an impact on making decisions in any area.

The mental capacity act provides a statutory framework to empower and protect vulnerable people. It makes clear who can make decisions under certain circumstances and enables those who may lose capacity in future to plan ahead.  The intention of the new legislation came from the Bournewood case where the aim of the proposals is to

provide legal safeguards for those vulnerable people who are deprived of their liberty, to prevent arbitrary decisions and to give rights of appeal. (Department of Health, 2006, pg1) 

The Mental Capacity Act 2005 has a test for capacity.  The test of capacity is explained in section 2 stating that, (a) ‘A person lacks capacity if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain; (b) It does not matter whether the impairment or disturbance is permanent or temporary’ (Brammer.A, 2007, pg 513). A person who lacks capacity is unable to make decisions about themselves.

Join now!

Unable to make decisions is addressed in section 3; ‘ a person is in able to make a decision for himself if he is unable, to understand the information relevant to the decision, to retain the information, to use or weigh up that information as part of the process of making the decision, or to continue the decision.’ (pg 514)

The Act is underpinned by a set of five key principles. The fist one is a presumption of capacity. Every adult has the right to make decisions unless it can be proved there is no capacity. Second, the rights ...

This is a preview of the whole essay