Introduction(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:law prior toMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:law prior toMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:law prior toMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:law prior toMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:law prior to
3.1The Mental Capacity Act (MCA) 2005 received the royal assent on 7 April 2005. Most of its provisions came into effect on 1 October 2007. Prior to the MCA 2005:
•The Court of Protection only had jurisdiction over an incapacitated person’s property and financial affairs. The relevant legal provisions were set out in Part VII of the Mental Health Act (MHA) 1983 and in rules made under that Act.
•Most treatment and care decisions were governed by the common law, in other words by laws and principles set down by judges rather than in legislation.
•The test which the judges formulated was beautifully simple: If the individual had capacity to make their own decision, treatment or care required their consent. If they lacked capacity, the clinician was under a duty to give any treatment or care necessary to preserve their life, health or well-being which was in their best interests.
3.2The beauty of the scheme was its simplicity and the fact that it was non-prescriptive; it left much to the discretion of those providing the treatment or care. The weakness of the scheme was its simplicity and the fact that it was non-prescriptive; it left much to the discretion of those providing the treatment or care.
3.3Because of the decision-making discretion given to professionals and family carers, few cases came to court. Only cases which involved especially significant or difficult decisions – such as life-sustaining treatment and sterilisation – tended to be referred.
3.4As the years went by, many people became concerned by the lack of any structured process for deciding more commonplace personal welfare matters – issues such as where and with whom an incapacitated person should live, how much contact they should have with family members and friends, how to help them to develop their activities and skills, what medication they should receive, and so on.
3.5Depending on the values, resources and time of family members and professionals, great to little or no care might be taken to establish which decisions the person could make for themselves. Similarly, if incapacitated, the individual might have considerable involvement in decisions about their welfare and future or none at all.