Questions of capacity, were for the most part, determined by the court or jury under the common law and in light of any relevant presumptions1.
The Mental Capacity Act 2005 placed on a statutory footing: (1) the developments of the common law in relation to treatment and welfare decisions for those who are incapacitated, and their best interests; (2) the previous lack of procedural and substantive clarity of the High Court under its inherent powers in relation to such matters; and (3) advance decisions refusing medical treatment. Nothing in the Mental Capacity Act 2005 expressly overrules the common law and
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