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

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Changing law: mental capacity legislation

2.1 The role of the Law Commission

Where an area of law appears to be in need of reform, there are various ways in which this could happen. Where the issue is very urgent, legislation may be introduced into Parliament immediately (either by the Government, or sometimes as a private member’s Bill). In other cases, the Government may undertake its own consultation exercise, involving Green and White Papers. However, where there are particularly complex issues of law involved, the Government may decide to refer the matter to the Law Commission. In Activity 3, you will learn more about the Law Commission’s role.

Activity 3 What is the Law Commission?

Timing: Spend no more than 1 hour on this activity.

Part 1

Go to the Law Commission’s website [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] and read about its role, and method of working (‘About us’). Look at the areas of law currently under review. If the Commission is currently consulting in an area which interests you, you could consider submitting a response. (Even if there are no consultations open at the moment, there are likely to be a number of areas ‘under review’, at different stages of the law reform process.)

Do you think that the Law Commission is an appropriate body to recommend changes in the law in response to the controversial issues raised by the Re F [1990] case? If not, is there another body (governmental or non-governmental) which would be better suited to the latter task?


Given the advantages and disadvantages of its membership and methods of operation you may feel that the Law Commission is more suited to reviewing technical legal issues (so-called ‘lawyers’ law’) and is not an appropriate body for reviewing controversial questions of law and policy. On the other hand, other bodies might not have the legal expertise required for a major law reform project, including the ability to produce draft legislation.

If you think that the Law Commission would be an appropriate body to review the legal issues arising from Re F [1990], should the review be narrowly focused, or address a wider range of issues such as:

  • the circumstances (if any) in which surgical sterilisation for non-therapeutic reasons should be legally permitted for a mentally incapacitated adult
  • the circumstances in which a range of reproductive decisions can be made on behalf of a mentally incapacitated adult (including the provision of contraceptive services, or abortion)
  • the lawfulness of a wider range of medical interventions (e.g. therapy, diagnosis, preventive care, medical research) for people who are unable to give consent
  • procedures for making a whole range of personal or financial decisions which involve the welfare of incapacitated people (e.g. where the person should live, how their money or property is managed, aspects of their daily routine)?

Part 2

How do you think a court would apply the principles of necessity and best interests developed in Re F [1990] to these different situations? (You can find the relevant cases by searching a legal database.)


Although the Re F [1990] decision is immediately concerned with the first of these issues, it revealed the lack of a legal framework to address most of them. Subsequent cases did consider these issues to some extent. For example, the procedure used in Re F [1990] for a sterilisation procedure was subsequently invoked to assess the lawfulness of issues such as:

  • abortion
  • hysterectomy for ‘therapeutic’ reasons (to treat a medical condition, rather than with the primary purpose of preventing pregnancy)
  • whether an incapacitated man could be sterilised
  • donation of bone marrow by an incapacitated person to close relative
  • whether an incapacitated person’s living arrangements should be determined by his estranged wife, or by his mistress.

Courts have applied the principles of necessity and best interests developed in Re F [1990] to a range of situations (you can find the relevant cases by searching a legal database). Although these cases clarified the application of the law to a wider range of circumstances, they did little to improve the situation of incapacitated people and their carers in a wide range of day-to-day situations. You might think that a court hearing is needed to review issues as serious as sterilisation. However, it would be practically impossible for courts to decide every important question about every incapacitated adult. In practice, most decisions are likely to be made by family members, or professionals caring for the incapacitated person. However, after Re F [1990] there was continuing anxiety about the legal basis for those decisions, the extent to which the principle of ‘necessity’ applied, and what was meant by the ‘best interests’ of incapacitated people.


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