CHAPTER 3
An overview of the Mental Capacity Act 2005
3.6The Law Commission’s work 3.10Statutory principles (section 1) 3.12The presumption of capacity 3.15Duty to help the person make their own decision where possible 3.20Unwise decision-making 3.24Duty to act in the person’s best interests 3.31Duty to consider less restrictive options 3.33Who lacks capacity (sections 2 and 3) What is meant by ‘unable to make a decision’?
3.46How much information is relevant information 3.52Capacity to understand the relevant information 3.54Capacity to retain the relevant information 3.55Capacity to weigh the relevant information 3.64Capacity to communicate one’s decision 3.65Best interests (section 4) 3.72Best interests and substituted judgment 3.78Safety, health, care, treatment and liberty 3.80Wishes, feelings and objectivity 3.90The statutory mechanisms 3.96Above and below the line Going below the line
3.102More about advance decisions 3.103An advance decision ‘to refuse treatment’ 3.105Effect of advance decisions 3.109Validity and applicability of advance decisions 3.119Interplay between advance decisions and LPAs 3.121More about court orders and deputies 3.126Personal welfare deputies Two or more deputies
3.143A deputy’s powers and duties 3.146Interplay between advance decisions and deputyship 3.147Restrictions on deputies 3.148Powers of deputies compared with donees and the court 3.149More about section 5 (‘acts in connection with a person’s care or treatment’) 3.166Deprivation of liberty 3.176The six requirements The age requirement • The mental health requirement • The mental capacity requirement • The best interests requirement • The no refusals requirement • The eligibility requirement
3.189The DOLS scheme and the four mechanisms 3.192The Cheshire West and Re X cases 3.195Three murky streams forming one river 3.200Detention and deprivation of liberty 3.205Interplay with the MHA 1983 3.206Treating physical disorders 3.208Treating mental disorders The scheme set out in the original MCA 2005
3.232Deprivation of liberty and the MHA 1983 3.234Principles of mental health law