Part 1
To emphasise their importance, the key principles appear in Part 1 of the Act. These enshrine and build upon aspects of the common law, such as the presumption of capacity unless established otherwise and the requirement to act in a person’s best interests. Part 1 also takes account of developments following the Bamford Review, such as the ratification of the UN Convention on the Rights of Persons with Disabilities, by placing greater emphasis on the requirement to take steps to support people to take decisions for themselves. As they are key concepts in the Act, Part 1 also defines what “lacks capacity” means and sets out the steps to be followed when determining what is in a person’s best interests.
Part 2 is the core of the Act. Rather than giving certain people statutory powers to intervene where necessary, Part 2 adopts a different approach by putting into statute the common law doctrine of necessity. This doctrine is currently relied upon by many people who work with or care for people who lack capacity to make decisions for themselves. In broad terms, it provides protection against civil and criminal liability, but only if the act is in the person’s best interests. Part 2 aims to do the same but, crucially, it requires additional safeguards to be put in place where the intervention is serious, before the legal protection can be availed of. The general rule is that the more serious the intervention is for the person lacking capacity to make the decision, the more safeguards need to be put in place. However, for all interventions, it must first be properly established that the person lacks capacity in relation to the intervention and that the intervention is in the person’s best interests. Additional safeguards include the requirement to carry out a formal assessment of the person’s capacity and to put in place and consult with a nominated person. These apply in respect of all serious interventions. A second opinion is also required in respect of certain serious treatments. Authorisation (usually by a Health and Social Care Trust (“HSC trust”) panel), and the requirement to put in place and consult with an independent mental capacity advocate, are reserved for the most serious interventions, such as compulsory serious treatment and detention in circumstances amounting to a deprivation of liberty. The right to seek a review by a Tribunal in respect of an authorisation granted by a HSC trust is also provided for in Part 2 and is an important additional safeguard.
