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

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Changing law: mental capacity legislation

1.1 Mental incapacity

There are a variety of situations in which a person might be considered unable to make decisions for themselves. In Activity 1 you will consider some of those.

Activity 1 Decisions, decisions

Timing: Spend no more than 15 minutes on this activity.

Think of some situations where a person might be unable to make decisions for themselves.


You might have thought of some of the following: a young child; someone who is asleep, unconscious, or in a coma; someone with severe mental illness, learning disability or dementia; a drug addict or a compulsive gambler.

In some of the situations you thought of, you might think that a person is able to make their own decisions, but unable to make good decisions; how do you distinguish between the two? For example, a young child might be able to decide which toy they wish to play with, but probably not whether they should go to school or receive inoculations against childhood illnesses. Even if a child has the intellectual ability to understand what is involved in these decisions, and the communicative ability to express a preference, you probably think that a young child is unlikely to know what is in their own best interests although an older child may have the ability to decide. Even so, the law may still attempt to limit children’s decision making in order to prevent harm, or to prevent children taking on adult responsibilities. There are fascinating and complex social and legal issues relating to when children should be able to make their own decisions.

The legal situation with children (anyone under the age of 18) is simpler than it is for adults. This is because children will usually have at least one person with parental responsibility (usually a parent) who can make decisions for them; in addition, there are clear legal powers which allow courts and public authorities to protect children’s welfare. In Section 1.2 you will consider legal proceedings that tried to clarify the law of England and Wales as regards vulnerable adults.


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