Question to the Ministry of Justice:

To ask the Secretary of State for Justice, what steps she has taken with the Secretary of State for Health and Social Care to review the (a) safe and (b) effective use of the Mental Capacity Act 2005 in cases where an individual has fluctuating capacity to make (i) safe and (ii) informed decisions.

The Ministry of Justice has responsibility for the Mental Capacity Act (MCA) 2005, which provides a framework for making decisions on behalf of adults who are unable to do so for themselves.

The 2007 statutory Code of Practice issued under the MCA already provides guidance to practitioners and others on the conduct of capacity assessments in keeping with the principles of the MCA. Paragraphs 4.26 and 4.27 and Chapter 3 of the Code provide guidance on people with fluctuating capacity and how to support them to make a decision.