Difference between Mental Capacity Act 2005 and The Convention on the Rights of Persons with Disabilities

2 June 2024 Money Carer

The Mental Capacity Act (MCA) 2005 and the Convention on the Rights of Persons with Disabilities (CRPD) are two significant legal frameworks concerning the rights and protections of individuals with disabilities or those who lack mental capacity. However, they serve different purposes and have distinct scopes and applications. Here are the key differences between them:

Mental Capacity Act (MCA) 2005

  1. Jurisdiction and Scope:
    • The MCA is a piece of domestic legislation applicable in England and Wales.
    • It provides a legal framework for making decisions on behalf of individuals who lack the mental capacity to make those decisions themselves.
  2. Purpose:
    • The MCA aims to protect and empower individuals who may lack the mental capacity to make certain decisions.
    • It outlines how to assess whether someone lacks capacity and sets out principles to follow when making decisions on their behalf.
  3. Principles:
    • A person must be assumed to have capacity unless proven otherwise.
    • All practicable steps must be taken to help someone make their own decisions.
    • An unwise decision does not necessarily indicate a lack of capacity.
    • Any decision made on behalf of someone lacking capacity must be in their best interests.
    • The least restrictive option should always be chosen.
  4. Best Interests Standard:
    • Decisions made on behalf of someone who lacks capacity must be in their best interests, considering their past and present wishes, feelings, beliefs, and values.
  5. Deprivation of Liberty Safeguards (DoLS):
    • The MCA includes provisions for DoLS, which protect individuals who might be deprived of their liberty for their own safety or care.

Convention on the Rights of Persons with Disabilities (CRPD)

  1. Jurisdiction and Scope:
    • The CRPD is an international human rights treaty adopted by the United Nations.
    • It applies to all countries that have ratified it, aiming to protect the rights and dignity of persons with disabilities globally.
  2. Purpose:
    • The CRPD promotes, protects, and ensures the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities.
    • It seeks to promote respect for their inherent dignity.
  3. Principles:
    • Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons.
    • Non-discrimination.
    • Full and effective participation and inclusion in society.
    • Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity.
    • Equality of opportunity.
    • Accessibility.
    • Equality between men and women.
    • Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
  4. Human Rights Framework:
    • The CRPD is grounded in a human rights framework, emphasizing the rights of individuals with disabilities to live independently and be included in the community.
    • It promotes legal capacity, meaning persons with disabilities have the right to make their own decisions on an equal basis with others.
  5. Implementation:
    • Countries that have ratified the CRPD are required to adopt and amend laws and policies to ensure compliance with the convention.
    • This includes ensuring accessibility, providing reasonable accommodations, and protecting against discrimination.

Key Differences

  • Focus: The MCA focuses on mental capacity and decision-making within a specific jurisdiction, while the CRPD addresses broader human rights for persons with disabilities on an international scale.
  • Legal Framework: The MCA is a national law with specific procedures for assessing capacity and making decisions, whereas the CRPD is an international treaty requiring changes to national laws and policies to align with its principles.
  • Best Interests vs. Autonomy: The MCA uses a “best interests” standard for decision-making on behalf of those lacking capacity. In contrast, the CRPD emphasizes the right of persons with disabilities to make their own decisions and exercise legal capacity.

Overall, while both frameworks aim to protect and empower individuals with disabilities or those lacking mental capacity, they do so through different approaches and principles. Here is more information.




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