1 How the law developed

The legislation that applies specifically to mental capacity is relatively recent. Previously these matters were dealt with through various pieces of legislation and guidance rather than through specific mental capacity legislation.

The law relating to capacity has come about at different times in each of the UK nations. Each act has a slightly different title and date. The first of the acts to be implemented was in Scotland. It is called the Adults with Incapacity (Scotland) Act 2000 and came into force in that year. In England and Wales, the title changed while under development to refer to ‘capacity’ rather than ‘incapacity’; the Mental Capacity Act 2005 was implemented in 2007. The most recent act is the Mental Capacity Act (Northern Ireland) 2016.

Differences in implementation are partly a result of devolution. However, one of the most important differences is that in England, Wales and Scotland a separate mental health act has been retained and a new capacity act added, while in Northern Ireland the acts relating to both have been joined.

The following timeline provides a summary of the major developments in the law regarding mental capacity since the 1990s in England and Wales, Scotland and Northern Ireland. You will be introduced to key points in the timeline as you continue working through this course.

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Figure _unit4.1.1 Figure 1 Major developments in the law regarding mental capacity since the 1990s in England and Wales, Scotland and Northern Ireland.

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1. 1993, The Law Commission 1989 the Government asked the Law Commission to undertake a review of the legal issues in relation to adults who lacked mental capacity
2. Personal welfare and finances
3. Medical treatment and medical research
4. Protection from abuse or exploitation

 

1. The Law Commission published 3 consultation papers, nos. 128, 129 and 130 putting forward a set of linked proposals
2. 1995 Final report
3. 1997 Green paper: Who decides?
4. 1999 White paper: Making decisions
5. 2003-04 draft Mental incapacity bill
6. 2004 Bournewood HL v UK
7. 2005 Mental Capacity Act

 

Scotland

1. Early 1990s the Scottish Law Commission was charged with drafting 2 consultation documents
2. 1999 Report on Incapable Adults
3. 2000 Adults with Incapacity (Scotland) Act
4. 2012 Scottish Law Commission discussion paper on Adults with Incapacity
5. 2014 Scottish Commission report on Adults with Incapacity
6. 2017 Scotland’s Mental Health and Capacity Law: the case for reform

Northern Ireland

1. 2002 to 2007 Bamford Review
2. 2007 Bamford report published
3. 2009 proposed a framework Department of Health, Social Services and Public Safety: comprehensive legislative framework to cover mental capacity and mental health, a capacity based fusion approach
4. 2010 further consultation on the Bill
5. 2016 Mental Capacity Act (Northern Ireland)
6. Implementation planned for 2020

 

Figure 1 Major developments in the law regarding mental capacity since the 1990s in England and Wales, Scotland and Northern Ireland.