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Capacity and Consent in England and Wales: The Mental Capacity Act under Scrutiny


The Mental Capacity Act 2005 came into force in England and Wales in 2007. Its primary purpose is to provide “a statutory framework to empower and protect people who may lack capacity to make some decisions for themselves.” Examples of such people are those with dementia, learning disabilities, mental health problems, and so on. The Act also gives those who currently have capacity a legal framework within which they can make arrangements for a time when they may come to lack it. Toward this end, it allows for them to make advance decisions (in effect, refusals of consent to certain forms of treatment) or to appoint proxy decision makers with lasting powers of attorney.

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1. Mental Capacity Act 2005—Summary. London: Department for Constitutional Affairs; 2005.

2. See note 1, Mental Capacity Act 2005—Summary. 2005.

3. Mental Capacity Act 2005. London: The Stationery Office; 2005:Part 1, Section 1.

4. See note 2, Mental Capacity Act 2005:Part 1, Section 2.

5. Beauchamp TL, Childress JF. Principles of Biomedical Ethics, 6th ed. New York: Oxford University Press; 2009:100.

6. See note 2, Mental Capacity Act 2005:Part 1, Section 4.

7. However, a lucid explanation is provided in Shah A. The paradox of the assessment of capacity under the Mental Capacity Act 2005. Philosophy, Psychiatry, Psychology (forthcoming).

8. Shah A, Heginbotham C. The Mental Capacity Act: Some implications for black and minority ethnic elders. Age and Ageing 2008;37:242.

9. See note 8, Shah, Heginbotham 2008:242.

10. See note 8, Shah, Heginbotham 2008:243.

11. See note 7, Shah (forthcoming).

12. See note 7, Shah (forthcoming).

13. Lucas P. Decision-making capacity and the deprivation of liberty safeguards. Philosophy, Psychiatry, Psychology (forthcoming).

14. See note 13, Lucas (forthcoming).

15. See note 13, Lucas (forthcoming).

16. Banner N. The “Bournewood Gap” and the deprivation of liberty safeguards in the Mental Capacity Act (2005). Philosophy, Psychiatry, Psychology (forthcoming).

17. Thornton T. Capacity, mental mechanisms and unwise decisions. Philosophy, Psychiatry, Psychology (forthcoming).

18. See note 17, Thornton (forthcoming).

19. See note 17, Thornton (forthcoming).

20. See note 17, Thornton (forthcoming).

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Cambridge Quarterly of Healthcare Ethics
  • ISSN: 0963-1801
  • EISSN: 1469-2147
  • URL: /core/journals/cambridge-quarterly-of-healthcare-ethics
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