The Capacity Act 2023: Code of Practice

Overview

The Department of Health and Social Care is consulting on the draft Capacity Act 2023; Code of Practice. This consultation provides an opportunity for people who may use the Code, be affected by the Act, or have an interest in how it will operate, to share their views before the Code is finalised.

Prior to the Capacity Act 2023 (the Act), in the Isle of Man there was no statutory, legal framework governing decisions about a person's welfare, healthcare or social care where they lacked capacity to make specific decisions. Which in effect left the Isle of Man behind other jurisdictions.

The Act addresses this by providing a modern legal framework for supporting and empowering people to make their own decisions wherever possible. The Act sets out principles that must be followed and the safeguards in place to protect a person’s rights wishes and feelings.

Where a person lacks capacity to make a decision, the Act enables decisions to be made or actions to be taken on their behalf, ensuring these are lawful, proportionate, in the person’s best interest and the least restrictive way. As part of these protections, the Act also introduces the offences of ill-treatment and deliberate neglect.

The Act generally does not apply to children under 16, except in limited circumstances involving a child's property or financial affairs, and the offence of ill-treatment or neglect, which applies regardless of age.

The Act aims to:

• Support and empower people to make their own decisions wherever possible
   
• Protect the rights, wishes and feelings of people who may lack capacity
   
• Ensure that any intervention is proportionate and does not unnecessarily restrict a person’s rights or freedoms
   
• Balance an individual’s right to make their own decisions with the need to protect them from harm where they are unable to do so
   
• Ensure that any decision made on behalf of another person is made in their best interests
   
• Provide appropriate safeguards for individuals, carers, family members and professionals

At its heart, the Act places the individual at the centre of decision-making and promotes autonomy wherever possible, supported by appropriate safeguards where a person lacks capacity.

The legislation and the Code have been introduced to improve consistency and address weaknesses in current practice. They are intended to support anyone making decisions or taking actions for or on behalf of people who may lack capacity to make a specific decision for themselves.

Phased implementation of the Act

The Act is a significant piece of legislation and will be brought into force in phases rather than all at once. Phase 1 is intended to bring the day-to-day capacity assessment and best interests framework into force, supported by the Code of Practice and workforce training.

This staged approach is intended to ensure that the core decision-making framework is embedded first, before more specialist provisions and arrangements are brought into effect, such as Lasting Powers of Attorney. It also allows time for new processes, systems, guidance and training to be introduced in a planned and proportionate way.

The draft Code of Practice being consulted on has been developed to support the first phase of implementation, which is currently anticipated to commence in April 2027. The Code may be revised and expanded as further provisions of the Act are brought into force.

The Department will continue to work with those affected by the Act throughout the implementation programme to ensure that the Code remains practical, relevant and effective.

The Department has published an Implementation Plan, which is available in the 'Related' section at the bottom of this page, that will be reviewed and updated periodically.

Why your views matter

We know that topics such as capacity, decision-making and best interests can sometimes seem complex.

The purpose of this consultation is to seek views, before the Code is finalised, from people who may use it, be affected by the Act or have an interest in how it operates.

We want to understand whether the draft Code of Practice is clear, accessible, accurate and practically workable. In particular, the Department is seeking views on whether the guidance explains the Act in a way that supports consistent decision-making, whether it provides sufficient practical assistance for professionals and others involved in care and support, and whether there are any areas where further clarification, examples or additional guidance may be required.

The consultation will also provide an opportunity for people with lived experience, families, carers, professionals, providers, partners and representative bodies to comment on how the Code may operate in real-life situations.

The feedback will help inform the final version of the Capacity Act 2023: Code of Practice.

Reasonable adjustments and alternative formats

The Department is committed to equal opportunities and our aim is to make our documents easy to use and accessible to all. This consultation relies on respondents accessing and reading the Code of Practice PDF under 'Related' below, which might not be compatible with all assistive technologies. However, there are text summaries provided throughout the consultation to provide in-page context to answer questions.

We will take steps to accommodate any reasonable adjustments and provide such assistance as you may reasonably require to enable you to access or reply to this consultation.

If you would like to receive this document in another format or need assistance with accessing or replying to this consultation, please email James.Skelly@gov.im or telephone +44 1624 656041.

Responding to this consultation

The questionnaire has been set out in 4 sections:

• Section 1 - About you
• Section 2 - Questions on specifics chapters of the Code
• Section 3 - General questions about the Code
• Section 4 - Aimed at professionals and organisations that will need to have regard to the Act

You may decide to answer only those questions that are relevant to your experience or area of interest. You may skip any questions where you do not feel able to comment and you do not need to complete every question for your views to be considered.

You can respond to this consultation online by clicking on the 'Online survey' link below. 

Alternatively, you can download a paper version of this consultation available in the 'Related' section below and email it to James.Skelly@gov.im or post it to:

Policy and Legislation Team,
Department of Health and Social Care,
First Floor, Belgravia House,
Circular Road,
Douglas,
IM1 1AE.

What happens next

Once the consultation closes, the Department will carefully analyse and consider the responses received and revise the Code as necessary. The Department will also publish the results of the consultation, including information about the next steps.

Publication of consultation feedback is expected within 12 weeks of the consultation closing, in line with Consultation Hub guidance.

Subject to the responses from the consultation, a revised version of the Code is expected to be taken back to Tynwald in November 2026.