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Published online by Cambridge University Press: 01 January 2018
Implementation of the Mental Capacity Act
The Mental Capacity Act has been viewed as a far-sighted piece of legislation with the key purpose of keeping the individual at the heart of decisionmaking. Although there are many examples of excellent practice, some of which were presented in the evidence that came before the House of Lords Select Committee on the Act, the Committee's report expressed concern about the patchy implementation of the Act. In many instances, owing in part to lack of awareness and understanding, it is not well embedded in health and social care practice. Consequently, the duties required of it are not always carried out. A full list of conclusions can be found in the report, but recommendations include the establishment of an Independent Oversight Body to propel implementation of the Act. We will return to other observations of the Committee in subsequent chapters.
Section 5
The MCA authorises the clinician (or another individual) to act (or treat, in the case of medical treatment) so long as:
‣ the principles of the MCA have been observed
‣ ‘reasonable steps’ have been made to ascertain decision-making capacity and the assessment has led to a ‘reasonable belief’ that the person lacks capacity in relation to the matter in question
‣ the action taken is in the best interests of the person.
Because the MCA provides the legal authority to carry out acts in connection with the care and treatment of people who lack capacity to consent, it also gives legal protection from liability for carrying out those acts.
We discuss the definitions and determination of capacity and best interests in Chapters 3 and 4. Autonomy is preserved through the observance of best interests and recognition of the primacy of an advance refusal of medical treatment.
If the decision maker is negligent in their decision-making or treatment, they may be liable just as they would be if the person had capacity.
Acts covered by section 5
The MCA Code of Practice2 lists the kinds of activity that might be covered by section 5.
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