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The history and current context of mental capacity legislation and policy

Introduction

The Mental Capacity Act 2005 took a long time to develop and get into law and provision for the care and support of people who are unable to manage their own affairs has a long history.

Provision for the care and support of people who were not able to manage their own affairs dates back to the 12th century where parens patriae jurisdiction or the Royal Prerogative allowed the monarchy  the power to make decisions on behalf of those  who were deemed not to be able to properly manage their own affairs via the system of ‘wardship’.

After 1700Formal provision for those with mental disorders only just starts to develop
1774Madhouse Act is introduced
1828Madhouse Act and the County Asylums Act are introduced
1845Lunacy Act introduced
1846“Psychiatry” as a term is first introduced into medicine
1890A later version of the Lunacy Act becomes the main legislation
1959Replaced by the Mental Health Act, which removed the Royal Prerogative in respect of adults. A side effect of the 1959 Act was to deprive the courts of jurisdiction over welfare and healthcare decisions other than for those with a mental disorder.

Mental Capacity law was in a state of “incoherence, inconsistency and historical accident” (para 2.45 Law Commission, 1995), with insufficient protection for those unable to make their own decisions. For those providing support to these individuals there was no single process or law understood by all, resulting in confusion and misunderstanding, especially regarding decisions around health and welfare. 

Prior to the MCA 2005, the way people understood and worked with mental capacity was variable, often making a global judgement based on diagnosis or behaviour, rather than clearly understanding what capacity might mean in each specific circumstance. Due to demographic changes resulting from an ageing population and advances in medicine which increase survival rates for certain illnesses, there has been potential for increasing numbers of people unable to make their own decisions. This has raised the importance of understanding how the MCA works, how it provides a mechanism for the protection of human rights and promotes autonomy, dignity and respect.

The MCA received Royal Assent in 2005 and was fully implemented in October 2007, with the Deprivation of Liberty Safeguards (DoLS) being added in 2007 with implementation in April 2009. Codes of practice were published in 2007 and 2008 and, for the first time, health, social care and other public sector professionals had a clear framework they could use to think about mental capacity and best interests decision-making in a way that promoted the individual’s rights. Although the application of the MCA has been variable, when applied appropriately it is an empowering piece of legislation that focuses on individual strengths and civil rights and places the emphasis on the individual making their own decisions.