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

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Changing law: mental capacity legislation

1.2 A leading case: Re F [1990]

Is there anyone who can act on behalf of an adult who is unable to decide for him or herself? Obviously, the answer to this question will vary between different legal systems. Next we will consider a case examining the law on this in England and Wales.

Activity 2 A gap in the law?

Timing: Spend no more than 2 hours on this activity.

Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] is a leading case on this area of law.

Before this case, it is possible that some young women with severe learning disabilities were sterilised without their consent. In some countries this took place as part of a deliberate ‘eugenics’ policy. In the UK, there was no law which authorised such operations, but the lack of legal certainty about when (if ever) such an operation was justified, might have led to operations being performed if families and medical professionals believed it was necessary. Without independent scrutiny of these decisions, it is difficult to know whether they were genuinely necessary to protect the woman concerned from unavoidable harm. After the House of Lords decision in, Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 it was clearer that such an operation might sometimes be lawful, based on the legal principle of ‘necessity’. It was also stated that such an operation should not be performed without a declaration made by a High Court judge, with the interests of the woman independently represented. This dealt with the issue of non-therapeutic sterilisation, but it remained unclear whether there were other types of decision which also required a similar approach, and how far the principle of necessity could be used to justify decisions in less controversial aspects of a mentally incapacitated person's life.

Section 2 will consider law reform and how that process was used to fill the gap highlighted by the Re F [1990] decision.

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