Commentary on Sections Part 2 – Lack of Capacity: Protection from Liability, and Safeguards
Part 2 creates a new statutory decision making framework that operates where a decision needs to be made in respect of a person aged 16 or over who lacks capacity in relation to a particular matter and no other arrangements are in place that would allow that decision to be made. It provides in section 9 for a general defence against liability for certain acts, subject to certain limitations. The availability of the defence depends on whether certain safeguards have been met. These are also referred to in section 9. Subsequent sections then set out when the safeguards apply and what they involve. Some key concepts are defined at the end of the Part.