Public Law and the Code of Practice - Essay Example

a. The Act was enacted so as introduce new provisions in respect of persons who lack capa in respect of making particular decisions and maximizing their ability so as to make decisions as well as participation in respect of decision making. Further, a superior court of record known as the Court of Protection established instead of the office of Supreme Court. In addition provisions which are in connection with the Convention on the International Protection of Adults which had been signed at the Hague on 13th January 2000. The Act provides for specific proviso which would allow people to plan ahead in respect of a situation where they might need support. Further, there are provisions which deal with problems that people may have in respect of a specific issue. The objective of the Act is uphold the principle of best interest for an individual. In addition the Court of Protection would help in complicated positions. The Independent Mental Capacity Advocate (IMCA) service will help persons who do not have any close support network. Further, the Act provides for criminal offence if a person is willfully neglecting someone who lacks capacity. The general application of the Act would be for people over the age of 16 years, however, it may apply to people who are younger. b. There are three parts to the Act. c. There are nine schedules to the Act. d. There are 69 sections in the Act. e. In respect of the Act, except for section 30-41 came into force by way of section 68. By virtue of Mental Capacity Act 2005 (Commencement) (Wales) Order 2007 and subject to Articles 3 and 4, sections 30 to 34 (research) of the Act came into force on 1 October 2007. By way of The Mental Capacity Act 2005 (Commencement No. 1)(England and Wales) Order 2007 the following provisions of the Act came into force on 1 April 2007 sections 42(1), (2), (3), (6) and (7) and 43 (codes of practice); section 44 (ill-treatment or neglect).The following provisions of the Act came into force on 1 April 2007 for purposes relating to the independent mental capacity advocate service:section 1 (principles);section 2 (people who lack capacity);section 3 (inability to make decisions);section 4 (best interests); and sections 42(4) and (5) (codes of practice). The provisions of the Act listed in Article 2(2) also came into force on 1 April 2007 for the purposes of section 44 (ill-treatment or neglect).Section 64 (interpretation) came into force on 1 April 2007 for the purposes of Article 2(1);Article 2(2); and Article 2(3). By way of The Mental Capacity Act 2005 (Commencement No. 2) Order 2007 the following provision came into force on 1 October 2007—sections 5 to 29;sections 45 to 63;sections 65 to 69; and Schedules 1 to 7. The following provisions of the Act, which had already been commenced for limited purposes, came into force on 1 October 2007 for all purposes: section 1 (principles);section 2 (people who lack capacity);section 3 (inability to make decisions);section 4 (best interests);sections 42(4) and (5) (codes of practice); and section 64 (interpretation). f. There have been changes to the Act, which is visible in the annotations. Such changes have been brought about by way of the Mental Health Act 2007. g. There are 19 statutory instruments in respect of the Act which include statutory instruments of Wales. There are 11 statutory instruments in respect of UK. h. The Code of Practice was issued by the Lord Chancellor on 23rd April 2007. The Code of Practice holds directions in respect of deficiency of liberty safeguards. The particular intention behind the code was guide professional who dealt with administering and providing such safeguards and is under a duty to pay heed to the Code. Further, the intent has been information to be provided by virtue of the Code to people who are or might be deprived of liberty safeguards, and for their families, friends and carers, as well as for anyone who believes that someone is being deprived of their liberty unlawfully. i. The Explanatory Notes of Mental Capacity Act were given Royal Assent on 07th April 2005. The preparation of the Notes was undertaken and completed by the Department for Constitutional Affairs and the Department of Health so as to provide assistance to those who read and allow them to understand the Act. They are not a part of the Act and have also not been endorsed by Parliament. 2.a. By virtue of the Act, a person is said to be lacking capacity in respect of a matter if during all times he is not able to render a decision for himself as to the matter and this is due to an impairment or disturbance in his functioning of mind or brain. Another important aspect is that permanent or temporary disturbance or impairment is not considered when establishing whether a person lacks capacity. Further, the age or appearance, behavioral aspect which may lead to unjustified assumptions about his capacity would not be the decisive factors. b. By virtue of section 4B a person can deprive the other of his liberty if the following pre requisites are satisfied while decision as to any issue is required from the court. The first conditions is the authorization and whether the person has such authorization by virtue of section 4A to deprive the other person of his liberty. The next condition is that such deprivation is fully or partly for the reason of or consists of life sustaining treatment for the other person; orfor the reason of performance of any vital act. The third element is that such deprivation is necessary so as to give life sustaining treatment or do the vital act. A vital act has been defined as something which a person reasonably believes is necessary so as to prevent any deterioration as to the condition of the person who lacks capacity. c. The reason for providing such principles is to establish the important aspects which would apply in respect of the Act and which have to be taken into account when interpreting or evaluation any of the section of the Act. By virtue of section 4 the person who makes the determination would look into the circumstances and consider whether the person would at some time attain capacity in respect of the matter at hand and if so what would it likely to be. Further, there must be encouragement that the person participates in making decisions. The past and present wishes and feelings should also be taken into account, beliefs and values of person in respect of his decision if there was capacity and other factors. Clearly the person is distressed and there is reasonable belief that it is in his best interests, and clearly the person did attain capacity he would want a brain scan. The decision would be made by his parents as they reasonably believe that it is necessary to sustain life of their 22 year old child. Further, even though he is unable to communicate the facts as well as wishes and feelings if any would be considered by the parents. a. Section 21 as originally enacted imposes a duty on the local authority to provide temporary or permanent residential accommodation by way of reasonably unforeseen circumstances for the former and those who are in need of care and attention in respect of the latter. Furthermore, conveyance as well as premises local health services were also a duty of the local authority. b. The approval of Secretary of State is required before provision of accommodation. The person has to be either the age of 18 or above, illness or disability for such accommodation. Further. Nursing and expectant mothers have now been separately included. Person who come under section 115 of Immigration and Asylum Act 1999 would be excluded from the aforementioned benefits if it is found that he is destitute or his physical effects or anticipated physical effects of his being destitute.The local health services was omitted as well. The citizen and the state relationship has changed as in dependence upon the state that could be said to be present in 1948 and duties imposed upon the state have been lowered because of self sufficiency of people and lesser dependence upon the state for provision of accommodation. Under s.46 and s.47 of the Act it is evident that person who require such services would be assessed and evaluated upon. During the evaluation the local housing authority would also assist in such evaluation and make a decision as to whether there is such a requirement. In the mean time the local authority is not prohibited to make temporary provisions till such a decision is made. c. In the case of R(on the application of M) v Slough Borough Council1, it was found that under section 21(1)(a) if a person says he is in “need of care and attention for the purposes of, it is necessary for him to need “looking after”. It was further stated that to look after someone meant that something would be done which could not or not be expected to do himself, for e.g. personal care. It was stated that a “need for care and attention” had to denote further than merely a need for accommodation since s.21(1)(a) was not a general power to provide housing. References WestLaw, Mental Capacity Act 2005, www.westlaw.com, accessed 02nd October 2011, Government Publications. GREAT BRITAIN.Mental Capacity Act 2005: deprivation of liberty safeguards : code of practice to supplement the main Mental Capacity Act 2005 code of practice.(6th edn,TSO, London 2008) RD Steele. The National Assistance Act 1948. (6th edn, Butterworth, London 1949) Read More