What is the Mental Capacity Act 2005 & Mental Health Act 1983?

April 28, 2022
by Hannah Farrell

The Mental Capacity Act 2005 is a law that protects and empowers individuals who lack mental capacity and may not be able to make decisions about their care.  The Mental Capacity Act 2005 has five key principles:

  1. All adults are assumed to have capacity;
  2. All people should be supported in every way possible to help them to make their own decision;
  3. People have the right to make unwise or eccentric decisions;
  4. If a person is deemed to lack capacity, everything done for them should be done in their best interest; and
  5. The least restrictive option should always be chosen when making a decision on behalf of someone lacking capacity.

What is capacity?

Capacity is a term used to describe an adult’s ability to understand and use provided information to make and communicate an informed decision. The General Medical Counsel (GMC) highlight that capacity is “decision and time specific”. This means that a person may have capacity to make some decisions, for example, choosing what clothes to wear, however they may lack capacity to make other decisions, for example, deciding to take their medication.

Who has capacity?

All adults are assumed to have capacity to make decisions about their healthcare. This assumption of capacity should not be influenced by characteristics such as age, disability, appearance, behaviour, medical condition, religious/spiritual beliefs, apparent inability to communicate, or because their decision is thought to be ill-advised.

How is mental capacity assessed?

Firstly, it must be decided whether the person has an impairment of their mind or brain; this may be from illness or acute substance-use such as alcohol or drugs.

Secondly, it must be decided whether the impairment affects their ability to make decisions.

A person is deemed to have capacity if they can successfully do the following:

  • Understand information provided that relates to the specific decision;
  • Retain the information;
  • Use the information to make their own decision without the influence of others;
  • Communicate their decision.

What happens if someone lacks capacity?

If a capacity assessment has taken place and the individual is deemed to lack capacity, then the decision regarding their care must be in their best interest with any restrictions to their basic rights and freedoms kept to a minimum.

In some cases, although the decision made may well be in the patient’s best interest, but amounts to a “deprivation of liberty”. A deprivation of liberty requires further input and authorisation from the local authority.

What is the Liberty Protection Safeguards?

Previously known as the Deprivation of Liberty Safeguards, the Liberty Protection Safeguards protects persons aged 16 and over who lack mental capacity and subsequently are to be deprived of their liberty in order to undergo treatment/care.

What is the Mental Health Act 1983?

The Mental Health Act is a piece of legislation which helps protect and empower people with mental health problems. The Mental Health Act informs individuals of their rights on the topics of hospital treatment and assessment, community treatment, and how a person can be admitted to hospital. The Mental Health Act also states how a person’s property and related matters are managed whilst under the act.

Psychiatric inpatients are classed as informal or formal. Informal patients are people who have voluntarily to go into hospital; informal patients have the right to accept or decline treatment, and they are free to leave when they want. Formal patients are people who have been admitted to hospital without them agreeing to do so; formal patients lose certain rights, including choosing or declining treatment, and cannot discharge themselves.

When someone is held formally, they are held under a section. There are different sections which will define how long the individual can be held, who can apply the section, and where the person can be taken.

  • Section 135 – This allows a police officer to remove someone from their home to a place of safety whilst further assessment is awaited.
  • Section 136 – This allows a police office to remove someone from a public space to a place of safety whilst further assessment is awaited.
  • Section 2 – Following a decision by two doctors, this allows a person to be admitted to hospital for assessment for 28 days.
  • Section 3 – Lasting initially six months, with potential to be renewed a further six months, and then 12 months, this section allows a person to be admitted to hospital for assessment and/or treatment. This also requires a decision by two doctors.
  • Section 4 – Lasting 72 hours, this allows an emergency admission for assessment before detention under section 2. This only requires the decision of one doctor.
  • Section 5 – This allows certain members of hospital staff to hold a patient on a ward for up to 6 hours.
  • Section 37 – Usually following a conviction, a person is admitted to hospital following an order by the Crown Court or Magistrates.
  • Section 38 – This is a section used to detain someone in hospital whilst they are convicted of an imprisonable offence (other than murder). This can last for a maximum of 12 weeks initially.
  • Section 47 – This is when a prisoner is transferred to hospital following an order by the Crown Court or Magistrates.

The implications of being placed under a section can be huge. Therefore it is vital that they are applied appropriately and through the correct process.

Our expert witnesses are all competent with assessing capacity. We have several expert witnesses who specialise in mental capacity.