Appointeeship and Deputyship FAQs

The Mental Capacity Act 2005 (MCA) and the United Nations Convention on the Rights of Persons with Disabilities (CRPD) are both legal frameworks that address issues related to decision-making and the rights of individuals with impaired or diminished capacity. However, they have key differences in scope, principles, and approach. Here are the main differences between the two:

1. International vs. National:
   • CRPD: The CRPD is an international treaty adopted by the United Nations in 2006. It sets out a comprehensive framework for protecting the rights of persons with disabilities globally. It is not specific to any country and serves as a guideline for countries to develop their disability rights laws and policies.
   • MCA 2005: The Mental Capacity Act 2005 is a national law enacted in England and Wales. It is specific to these two jurisdictions and provides a legal framework for decision-making for individuals who lack the capacity to make decisions about their affairs.
2. Scope:
   • CRPD: The CRPD is a broad human rights treaty that covers a wide range of rights and issues related to persons with disabilities, including but not limited to decision-making capacity. It addresses accessibility, education, employment, and social inclusion.
   • MCA 2005: The MCA 2005 is primarily focused on issues related to mental capacity and decision-making. It provides a legal framework for making decisions on behalf of individuals who lack capacity, including decisions about healthcare, finances, and living arrangements.
3. Principles:
   • CRPD: The CRPD is based on a social model of disability, which emphasizes the importance of inclusion, equality, and non-discrimination. It promotes the idea that disability results from societal barriers and attitudes, rather than inherent limitations of individuals.
   • MCA 2005: The MCA 2005 is more focused on a functional assessment of capacity. It provides a legal framework for making decisions in the best interests of individuals who lack capacity, with a primary emphasis on their welfare and protection.
4. Decision-Making Process:
   • CRPD: The CRPD encourages supported decision-making, where individuals with disabilities are provided with the necessary support to make decisions to the fullest extent possible. It also recognizes the right to legal capacity for all persons with disabilities, meaning that their will and preferences should be respected in all matters, and any substitute decision-making should be a last resort.
   • MCA 2005: The MCA 2005 allows for substituted decision-making, where others make decisions on behalf of individuals who lack capacity when it is in their best interests. It emphasizes a process of assessing capacity and determining what is in the individual’s best interests, often with input from family members, healthcare professionals, or legal representatives.

In summary, the CRPD is an international human rights treaty that covers a wide range of disability rights, including decision-making, and promotes a social model of disability and supported decision-making. In contrast, the MCA 2005 is a specific national law focused on decision-making for individuals lacking capacity in England and Wales, with an emphasis on functional capacity assessment and substituted decision-making in the individual’s best interests. The two frameworks have different scopes, principles, and approaches, reflecting their different purposes and contexts.