Overview
14.Part 1 of the Act sets out the key principles upon which the Act is based. They include, and build upon, the common law presumption of capacity in persons aged 16 and over and the common law principle of best interests. Significantly, they place greater emphasis on the need to support people to exercise their capacity to make decisions where they can. If, on the other hand, it is established that a person lacks capacity to make a specific decision at a particular time, the Act provides alternative decision making mechanisms.
15.People may lack capacity to make a decision for many reasons. It may be because of, for example, a stroke, an acquired brain injury, a learning disability or a mental illness, and so the Act has the potential to impact upon many people. In fact, the reality is that the Act has the potential to affect everyone in society, as most people will at some point in their lives be directly involved with, or will know of, someone who lacks capacity. They could even potentially be an attorney who, through the new system provided for in the Act, can be given the authority by someone else to make decisions on his or her behalf at a time in the future when he or she lacks capacity to do so. This new system will be known as Lasting Powers of Attorney.
16.If, however, such arrangements have not been put in place, the core of the Act (Part 2) will apply to acts in connection with a person’s care, treatment or personal welfare. This puts on a statutory footing the common law doctrine of necessity but, importantly, also provides persons who lack capacity with new safeguards that increase with the seriousness of the intervention being proposed. There are also ways in which, under the Act, the court can make one-off decisions or appoint court deputies to make decisions on an ongoing basis.
17.Parts 9 and 10 of the Act are concerned with powers of the police, courts and the Department of Justice. These powers include police powers to remove persons from a public place to a place of safety, court powers to impose particular healthcare disposals on offenders at remand, sentencing or following a finding of unfitness to plead, and Departmental powers to transfer prisoners and others detained in a custodial environment for in-patient treatment in a hospital. These powers, however, have been created in such a way as to respect the autonomy of an individual to make a decision about medical treatment.
18.The provisions of the Act are divided into 15 Parts consisting of 308 sections in total, and 11 Schedules.