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protections under the act

The Act introduces significant new protections from abuse for those lacking capacity. However, there are also safeguards for those who work with individuals lacking capacity - provided their actions are in the best interests of the person concerned. 

Court of Protection

A new superior court of record entitled the Court of Protection is created under Section 45 of the Mental Capacity Act. The Court can sit anywhere in England and Wales and has jurisdiction to make decisions in relation to the property and affairs and healthcare and personal welfare of persons who lack capacity. 

The Court will be responsible for welfare matters that would previously have been referred to the High Court.  The Court has the same powers as the High Court, and will have the power to summon witnesses and enforce orders.  The Court has the power to issue Practice Directions, and also to make its own procedural rules.  The Court of Protection Rules 2007 can be accessed here.

The Court also has the power under section 48 to make interim orders prior to receiving evidence as to lack of capacity, where there is reason to believe that the person lacks capacity in respect of a particular matter, and it is in his best interests for the Court to so act.

Section 50 (1) sets out those individuals who can apply to the Court of Protection without having to apply for permission to apply first.  It includes:

  • a person who lacks, or is alleged to lack, capacity;
  • if such a person has not reached 18, anyone with parental responsibility for him;
  • the donor or a donee of a lasting power of attorney to which the application relates;
  • a deputy appointed by the court for a person to whom the application relates;
  • a person named in an existing order of the court, if the application relates to the order.

 An appeal against a decision of the Court of Protection would generally need to be made to the Court of Appeal.

Prosecution for ill-treatment or neglect 

The Mental Capacity Act creates the criminal offences of ill-treatment or wilful neglect under Section 44 based on existing principles (under Section 127 (1) of the Mental Health Act 1983). The offences can be committed by anyone responsible for that person’s care.

They are offences punishable 'either way' in the Magistrates' or Crown Court as follows:

  • on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both;
  • on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine or both.

The elements are that the offender:

  • has the care of the person in question OR is the donee of a power of attorney OR is a court-appointed deputy;
  • reasonably believes the person lacks capacity (or they do lack capacity);
  • ill-treats or wilfully neglects the person.

It can be expected that ill-treatment will require more than trivial ill-treatment, and will cover both deliberate acts of ill-treatment and also those acts reckless as to whether there is ill-treatment.

Wilful neglect will require a serious departure from the required standards of treatment and usually requires that a person has deliberately failed to carry out an act that they were aware they were under a duty to perform.

In consequence, defences could be raised to the effect that the elements of the offence set out in Section 44 are not made out in the following terms:

  • there is no Section 44 relationship (no care/power of attorney/court-appointed role);
  • the person does not lack capacity and/or there was no reasonable belief in such a lack of capacity;
  • there was no ill-treatment or wilful neglect.
Office of the Public Guardian

A new public official, known as the Public Guardian (appointed by the Lord Chancellor) is created.  The purpose of the Public Guardian is to oversee how procedures relating to capacity work in practice to ensure that those who lack capacity do not suffer abuse. 

The Public Guardian is to have the following roles as set out in Section 58 (1): 

  • establishing and maintaining registers of lasting powers of attorney and of orders appointing deputies and supervising deputies;
  • directing Court of Protection visitors to visit donors or donees of LPAs, deputies or those appointing them;
  • dealing with complaints about how an attorney or deputy is exercising his powers.

It is anticipated that the Public Guardian will work closely with organisations such as local authorities and NHS bodies, and publish information describing his work.  The website can be accessed here.

The Public Guardian also has powers enabling him to examine and take copies of relevant health, social service or care records and to interview individuals concerned in private.  The work of the Public Guardian will be scrutinised by a Public Guardian Board. 

What protection does the Mental Capacity Act offer for people providing care or treatment?

Section 5 of the Mental Capacity Act provides protection from liability for carers, healthcare and social staff when carrying out certain tasks. This section offers protection against civil and criminal liability for certain acts done in connection with the care or treatment of a person which would normally require that person’s consent (ie helping a person to dress, eat or wash). Such acts are not limited to "day to day" or emergency situations, as they could include, for example, performing a serious planned operation.

Who is protected from liability by section 5?

Section 5 of the Act is most likely to affect:

  • family carers and other kind of carers;
  • care workers;
  • healthcare and social care staff; and
  • others who may occasionally be involved in the care or treatment of a person who lacks capacity to consent (for example, ambulance staff, housing workers, police).

What are the advantages of this protection?

Without the statutory protection of Section 5, acts such as those described above, could amount to civil wrongs, such as trespass, or crimes, such as assault.  This protection is subject to the limitations in Section 6.  The limitations set out that the protection can apply to acts of restraint provided such acts are also aimed at preventing harm to the resisting individual, are a proportionate response to that resistance, and are in the best interests of that individual.

This section enables steps to be taken on behalf of a person by family members, carers and health and care professionals without the need for any formal authority or involvement of the Court of Protection as long as the steps are in the person’s best interests.

There is no requirement for decisions taken within the scope of this section to be documented or for any person or body to be informed of the decisions taken. The protection will apply in any setting where a person is being cared for or where services are being provided to him or her (ie at a person’s home, a day centre or a hospital).

Please click below to view the limitations.