The Mental Capacity Act (2005) includes a list of excluded decisions, which cannot be made on behalf of another individual or in their ‘best interest’. These exclusions are outlined in section 27:
(a) consenting to marriage or a civil partnership
(b) consenting to have sexual relations
(c) consenting to a decree of divorce being granted on the basis of two years’ separation
(d) consenting to a dissolution order being made in relation to a civil partnership on the basis of two years’ separation
(e) consenting to a child’s being placed for adoption by an adoption agency
(f) consenting to the making of an adoption order
(g) discharging parental responsibilities in matters not relating to a child’s property
(h) giving a consent under the Human Fertilisation and Embryology Act 1990 (c. 37)
(i) giving a consent under the Human Fertilisation and Embryology Act 2008
Furthermore, section 29 also states clearly that ‘Nothing in this Act permits a decision on voting at an election for any public office, or at a referendum, to be made on behalf of a person’.
While one might assume that these exclusions are fairly self-evident in how they should apply, we would always advise professionals to stay abreast of emerging case law, as interesting cases arise from time to time that test the application of these exclusions in very specific circumstances.