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MCA 2005 s5

Law as at 1/5/09

Part I contents: 1, 2, 3, 4, 4A, 4B, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 16A, 17, 18, 19, 20, 21, 21A, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 39A, 39B, 39C, 39D, 39E, 40, 41, 42, 43, 44

All Parts: I, II, III, Schedules

Without commentary: Plain text,


Acts in connection with care or treatment

5.—(1) If a person ("D") does an act in connection with the care or treatment of another person ("P"), the act is one to which this section applies if-

(a) before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and
(b) when doing the act, D reasonably believes-
(i) that P lacks capacity in relation to the matter, and
(ii) that it will be in P's best interests for the act to be done.

(2) D does not incur any liability in relation to the act that he would not have incurred if P-

(a) had had capacity to consent in relation to the matter, and
(b) had consented to D's doing the act.

(3) Nothing in this section excludes a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing the act.

(4) Nothing in this section affects the operation of sections 24 to 26 (advance decisions to refuse treatment).


The Mental Capacity Act 2005 has been fully in force since 1 October 2007. For details of proposed amendments, see Mental Health Act 2007.