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The Mental Capacity Act 2005: a new framework for healthcare decision making
  1. Carolyn Johnston1,
  2. Jane Liddle2
  1. 1Kingston University, Kingston Law School, Kingston Hill, Kingston upon Thames, Surrey, UK
  2. 2Health Care of the Elderly Department, Northern General Hospital, Sheffield, UK
  1. Correspondence to:
 C Johnston
 Department of General Practice and Primary Care, King’s College London, 5 Lambeth Walk, London SE11 6SP, UK; carolyn.johnston{at}


The Mental Capacity Act received Royal Assent on 7 April 2005, and it will be implemented in 2007. The Act defines when someone lacks capacity and it supports people with limited decision-making ability to make as many decisions as possible for themselves. The Act lays down rules for substitute decision making. Someone taking decisions on behalf of the person lacking capacity must act in the best interests of the person concerned and choose the options least restrictive of his or her rights and freedoms. Decision making will be allowed without any formal procedure unless specific provisions apply, such as a written advance decision, lasting powers of attorney or a decision by the court of protection.

  • LPA, lasting powers of attorney

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  • i The Code of Practice also sets out in some detail when a formal assessment of capacity should be carried out, paragraph 3.53.

  • ii Section 5 only offers protection against liability in battery, if the action is itself carried out negligently it does not offer protection to the health professional.

  • iii Under the Enduring Powers of Attorney Act 1985, an attorney could be appointed to act in relation to property and financial affairs. The Mental Capacity Act 2005 repeals the Enduring Powers of Attorney Act and provides a new regime for the appointment of attorneys to deal with property and financial matters.

  • iv Paragraph 8.36 of the draft Code of Practice states that storage and notification of an advance decision are primarily the responsibility of the maker.

  • v Such care may be provided under the provisions of section 5.

  • vi A young woman made an advance directive when she was a practising Jehovah’s Witness refusing blood products. Her father questioned the validity of the advance decision as she had recently become engaged to a Muslim man. The court stated that where life is at stake, the evidence must be scrutinised with especial care. The advance directive was considered invalidated by this change of circumstance.

  • vii Cases involving 16 and 17-year olds who lack capacity may be dealt with by the Court of Protection or in a court dealing with family proceedings.

  • viii Paragraph 7.39 of the draft Code of Practice gives examples of cases where there is a history of acrimonious and serious family disputes or where the person’s best interests are resolved by a deputy consulting everyone concerned.

  • Competing interests: None.