Changing law: mental capacity legislation
Changing law: mental capacity legislation

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Changing law: mental capacity legislation

1 The need for law reform

Problems in the law can be highlighted in various ways. For example high-profile court cases, media or public concern, campaigns by pressure groups, or political or international pressure may suggest that the current law is not entirely satisfactory.

This course will look at one specific area of law – mental incapacity – and see how it was identified as needing reform.

To start, listen to the following podcast, in which I, Phil Bates, explain how I became interested in the issues explored in this course. It is approximately 5 minutes long. The 'Block 1' referred to in the audio is in the original Open University course W820 Exploring legal meaning. It does not apply to this course.

Download this audio clip.Audio player: The need for law reform
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Transcript: The need for law reform

Marc Cornock
Hello, and welcome to Block 1. I’m Marc Cornock and I’m speaking to Phil Bates the author of this block, about mental capacity and reform issues. Phil, how did you become first interested in these two issues?
Phil Bates
Well, when I was doing my law degree I learnt a lot of legal rules. I learnt about how to find what the law was, I wrote some essays where I criticised the law for being unfair or unclear, but, I really felt I was only skimming the surface of law and I wanted to go a bit deeper. I decided that one way of exploring those issues in more depth would be to do a Master’s degree. For my Master’s dissertation I chose the law relating to children. As an undergraduate I’d studied family law at a really fascinating time. The Children Act 1989 had just been passed and it hadn’t yet been implemented, so my lecturers were teaching the law at a time when all of the old case law, all of the old law was largely superseded. We spent much longer in that course looking in detail at the statute. We looked at the language of the statute, why it was drafted the way it was, what it was meant to achieve and we asked whether it was going to achieve the things it set out to do or whether it was perhaps going to generate new problems. For my Master’s I wanted to look at those issues much more closely and one of the things I really wanted to do was to compare the Children Act, which I’d already looked at with the Child Support Act which was another new piece of legislation which had just come along.
These were two pieces of law that were dealing with quite similar issues and had been drafted and passed into law at similar times by the same government and yet it seemed to me they were taking very different approaches to the issues. One reason why the two pieces of legislation seemed so different was because the Children Act was the product of a project by the Law Commission which is the official body which recommends law reform to the UK government. The Child Support Act came from a political policy from the Prime Minister at the time, Margaret Thatcher; so that helps to explain why the two pieces of law looked quite different and had quite different approaches.
By a coincidence while I was working on that dissertation I noticed that there was a job advert for people to go and work at the Law Commission as research assistants, so while I was writing about the Law Commission’s work in my dissertation I was also applying for a job there.
Marc Cornock
Working at the Law Commission sounds interesting, can you explain what you did when you were there?
Phil Bates
I was a research assistant. My particular project that I was most involved with was looking at the law relating to mentally incapacitated adults. A consultation paper had been put out which outlined the current law, suggested some of the issues that might be a problem with the current law and asked for suggestions as to how the law could be improved.
My job initially was to go through all the responses we’d received from the public, from judges, lawyers, academics, pressure groups and to try and work out whether they suggested a way forward.
We found that we were being presented with all sorts of mixed messages. Hardly anyone said the law was satisfactory, almost everyone thought the law needed to be changed, but there were so many different ideas for how it should be changed and some of them were contradictory.
So, the next task was to try and work out the direction to take the project forward, whether it was actually plausible, realistic to try and make changes or whether actually changing the law would cause more trouble and make things even worse.
Marc Cornock
I can see how your postgraduate work led you into the Law Commission but after you left the Law Commission did you continue to look at law reform as a way of exploring legal meaning?
Phil Bates
Almost everything I’ve done since then, I think, was influenced by those early experiences. Whenever I look at law I tend to have three questions in my mind, what’s the current law, what’s wrong with it and how can we fix it?  My next job in fact was to work at the Thomas Coram Research Unit in London doing socio-legal research. Now, for me, that was fantastic because that kind of closed the law reform loop for me. Having looked at the origins of the Children Act as an undergraduate and then in my Master’s dissertation, having worked at the Law Commission and seen the process of law reform, I was now seeing how those law reforms were actually being implemented in courtrooms for real people. That means that I could see what had worked, what objectives had been achieved, but I could also see where there was still further room for improvement. So the cycle continues. For me that’s one of the really fascinating aspects of exploring legal meaning through the process of law reform. Although there is always room for improvement it isn’t inevitable and one of the things you also see sometimes is that an area of law that might work quite well ends up being messed up by a misguided attempt at law reform. So it isn’t inevitable that we improve things but we keep trying to find ways to do so.
Marc Cornock
Thanks, Phil, that’s a useful way of exploring legal meaning in society.
Phil Bates
I’m really hoping that the students find it interesting as well.
End transcript: The need for law reform
The need for law reform
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