Mental Capacity Act 2005
What this means for your business
- Applies to
- United Kingdom
- On this page
- 10 compliance obligations, 1 practical guide
What you must do
10 compliance obligations under this legislation — 3 can result in imprisonment.
Appointments 1
Appoint an independent advocate when a patient’s representative ends
If a person who is under a legally‑binding decision (Schedule A1) loses their appointed representative and there’s no other suitable person to advise them, the hospital or care home must alert the supervisory body and get an independent mental capacity advocate in place. This means you need to track when a representative ends and act quickly to secure an advocate for that patient.
Management duties 3
Apply extra safeguards for research participants lacking capacity
If your organisation runs an approved research project that includes people who cannot consent, you must stop any procedure they object to (unless it’s to protect them from harm), honour any advance decisions they have made, and withdraw them immediately if they ask to be withdrawn or if the research no longer meets the required safeguards. You can keep any treatment going only if stopping it would pose a serious health risk.
Consult a carer before involving a person lacking capacity in research
If you run a research project and want to include someone who cannot give consent, you must find a family member, informal carer or anyone else caring for them and ask for their advice. Give them clear details of the study and follow their view – if they think the person would refuse, you must not enrol them or must withdraw them, unless stopping would create a serious health risk.
Follow the relevant code of practice when dealing with people who lack capacity
If you act as a donee of a lasting power of attorney, a court‑appointed deputy, a researcher, an independent mental capacity advocate, or in any professional role that involves a person who lacks capacity, you must follow the appropriate code of practice issued by the Lord Chancellor. This means checking the relevant code and ensuring your actions are in line with its guidance whenever you make decisions or provide care for that person.
Notifications 1
Notify supervisory body when a person becomes subject to Schedule A1
If someone in your hospital or care home is placed under Schedule A1 and there’s no other suitable person to consult about what’s in their best interests, you must inform the supervisory body. This is a simple notification you need to send as soon as the situation arises.
Payments and fees 2
Collect reasonable payment for necessary goods/services to those lacking capacity
If you provide goods or services that are needed by a customer who cannot legally make a contract because they lack mental capacity, you must still charge a reasonable price and ensure they pay. You need to check the items are truly 'necessary' for the person’s circumstances and that the price you charge is fair.
Pay court fees when a Court of Protection case involves you
If your business or a person connected with it is party to a case handled by the Court of Protection under the Mental Capacity Act, you must pay any fees set out in the Lord Chancellor’s order. These fees apply to every matter the court deals with and are recoverable as a civil debt – so the court can enforce payment if you don’t comply.
Offences and prohibitions 3
Ill‑treat or wilfully neglect a person lacking capacity
5 years imprisonmentIf you have responsibility for, or are appointed to look after, a person who lacks mental capacity (or you reasonably think they lack it) you must not mistreat them or deliberately neglect their needs. Breaching this duty is a criminal offence. On conviction you face an unlimited fine and, depending on how the case is tried, up to six months’ imprisonment on summary conviction or up to five years in Crown Court.
Make false statement in lasting power of attorney registration
2 years imprisonmentIf you submit an application to register a lasting power of attorney and deliberately include a statement that you know is false, you commit a criminal offence. On conviction you can be fined (up to an unlimited amount) and face up to six months in prison for a summary conviction, or up to two years in prison for a Crown Court conviction.
Make false statement in registration application
2 years imprisonmentIf you (or an attorney acting on behalf of a donor) knowingly give a false material statement in an application to register an enduring power of attorney, you commit a criminal offence. On conviction you can be sentenced to up to two years in prison and face an unlimited fine.
Penalties for non-compliance
3 penalties under this legislation. 3 can result in imprisonment. 3 carry an unlimited fine.
Ill‑treat or wilfully neglect a person lacking capacity
Unlimited fine and/or 5 years imprisonment
Make false statement in lasting power of attorney registration
Unlimited fine and/or 2 years imprisonment
Make false statement in registration application
Unlimited fine and/or 2 years imprisonment
Practical guidance
Our guides explain how to comply with the requirements above.
Sections and provisions
88 classified provisions from this legislation.
Duties 11
- s.7 Payment for necessary goods and services
- s.32 Consulting carers etc. R
- s.33 Additional safeguards
- s.39C Person unrepresented whilst subject to Schedule A1 The managing authority
- s.39D Person subject to Schedule A1 without paid representative failed
- s.39A Person becomes subject to Schedule A1 The managing authority
- s.42 Codes of practice a person
- s.43 Codes of practice: procedure
- s.54 Fees
- s.58 Functions of the Public Guardian
- s.60 Annual report
Offences and penalties 3
Powers 17
- s.8 Expenditure
- s.10 Appointment of donees
- s.15 Power to make declarations
- s.16 Powers to make decisions and appoint deputies: general
- s.17 Section 16 powers: personal welfare
- s.18 Section 16 powers: property and affairs
- s.21 Transfer of proceedings relating to people under 18
- s.21A Powers of court in relation to Schedule A1
- s.22 Powers of court in relation to validity of lasting powers of attorney
- s.23 Powers of court in relation to operation of lasting powers of attorney
- s.35 Appointment of independent mental capacity advocates
- s.36 Functions of independent mental capacity advocates
- s.41 Power to adjust role of independent mental capacity advocate
- s.48 Interim orders and directions
- s.51 Court of Protection Rules
- s.55 Costs
- s.67 Minor and consequential amendments and repeals
Definitions 23
- s.1 The principles
- s.2 People who lack capacity
- s.3 Inability to make decisions
- s.4 Best interests
- s.6 Section 5 acts: limitations
- s.9 Lasting powers of attorney
- s.11 Lasting powers of attorney: restrictions
- s.13 Revocation of lasting powers of attorney etc.
- s.16A Section 16 powers: Mental Health Act patients etc
- s.20 Restrictions on deputies
- s.24 Advance decisions to refuse treatment: general Advance decision
- s.25 Validity and applicability of advance decisions
- s.27 Family relationships etc.
- s.29 Voting rights
- s.30 Research
- s.31 Requirements for approval
- s.49 Power to call for reports
- s.57 The Public Guardian
- s.62 Scope of the Act
- s.64 Interpretation
- ... and 3 more definitions
Exemptions 11
- s.4A Restriction on deprivation of liberty
- s.5 Acts in connection with care or treatment
- s.14 Protection of donee and others if no power created or power revoked
- s.28 Mental Health Act matters
- s.37 Provision of serious medical treatment by NHS body
- s.38 Provision of accommodation by NHS body
- s.39 Provision of accommodation by local authority
- s.40 Exceptions
- s.65 Rules, regulations and orders
- Schedule 2 Property and affairs: supplementary provisions
- Schedule 3 International protection of adults