Acts in connection with care or treatment – the legislation
Protection from liability
Protection from liability
MCA 2005, s 5 makes provision to allow carers (both informal carers, such as family members, and paid carers) and health and social care professionals to carry out certain acts in connection with the personal care, health care or treatment of a person lacking capacity to consent to those acts. These provisions are intended to give legal backing, in the form of protection from liability, for actions which are essential for the personal welfare or health of people lacking capacity to consent to having things done to or for them. Such actions can be performed as if the person concerned had capacity and had given consent.1 There is no need to obtain any formal powers or authority to act.
1 MCA 2005, s 5(2).
In introducing the Bill into the House of Commons, the Under Secretary of State for Constitutional Affairs, David Lammy explained:1
‘Clause 5, entitled “Acts in connection with care and treatment”, is an important clarification of the law surrounding what someone can do to or for a person lacking mental capacity who is unable to give consent. The current law is based on the poorly understood and obscure “doctrine of necessity”. Hon. Members will know of constituents who are worried and uncertain about what they are allowed to do, because they do not understand the law. For example, a nurse may want to restrain someone who is having an epileptic fit. Someone caring for an elderly patient at home may need to help them to use the toilet. Someone whose daughter suffers from bipolar disease may want to go to her house to cook for her and to help her to eat because she is in too much distress.
It is not right that people in such situations should have to rely on what seems to them to be an outdated and obscure legal concept. Clause 5 explains what they can do. It provides that one is protected from liability when the person cannot consent, provided that one takes reasonable steps to establish whether that person lacks mental capacity in relation to the matter in question, that one reasonably believes that the person lacks capacity in relation to the matter, and that what one does is in the person’s best interests.’
1 Hansard, HC Deb, vol 425, ser 6, col 29 (11 October 2004).
Section 5 acts
The types of acts which may be carried out with protection from liability under MCA 2005, s 5 (sometimes referred to as ‘section 5 acts’) are those carried out in connection with the care or treatment of a person who is believed to lack capacity in relation to the matter in question, at the time the act needs to be carried out. The Code of Practice provides examples (but not an exhaustive list) as follows:1
• helping with washing, dressing or personal hygiene
• helping with eating and drinking
• helping with communication
• helping with mobility (moving around)
• helping someone take part in education, social or leisure activities
• going into a person’s home to drop off shopping or to see if they are alright
• doing the shopping or buying necessary goods with the person’s money
• arranging household services (for example, arranging repairs or maintenance for gas and electricity supplies)
• providing services that help around the home (such as homecare or meals on wheels)
• undertaking actions related to community care services (for example, day care, residential accommodation or nursing care)
• helping someone to move home (including moving property and clearing the former home)
Healthcare and treatment
• carrying out diagnostic examinations and tests (to identify an illness, condition or other problem)
• providing professional medical, dental and similar treatment
• giving medication
• taking someone to hospital for assessment or treatment
• providing nursing care (whether in hospital or in the community)
• carrying out any other necessary medical procedures (for example, taking a blood sample) or therapies (for example, physiotherapy or chiropody)
• providing care in an emergency.’
As a general rule, a ‘section 5 act’ is one where consent (either explicit or implied) would normally be required from a person of full capacity for the particular act to be carried out. Only acts or arrangements involving minimum legal formality are covered, since more formal legal transactions (particularly those requiring written documentation) would require more than the person’s ‘consent’.
1 Mental Capacity Act 2005: Code of Practice, at para 6.5.
taken from the book;
COURT OF PROTECTION 2011
Actions taken with regard to protest etc; are a direct result of the lack of responses regarding written requests contact with HUGH JONES in regard to my mothers health and well being in particular the lack of funds to bring her to a family meeting which HUGH JONES failed to provide and also the lack of funds being provided for her food!
Desperation due to HUGH JONES actions has resulted in the subsequent protests and I therefore will claim;
Protection from LIABILITY due to your actions of inhumane treatment of my mother.
Which I might add is continuing!!
Mike ANN CLARKE
Administrative Secretary - Dispute Resolution Group
For and on behalf of Pannone LLP
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