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

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Changing law: mental capacity legislation

2.2 The Law Commission’s review of mental incapacity

In fact, in 1989 the Government asked the Law Commission to undertake a review of the whole range of legal issues involving mentally incapacitated adults. A consultation paper was published in 1990 (No 119), reviewing the existing law and identifying some of its problems. It pointed out that there were legal procedures to deal with the property and financial affairs of incapacitated people. There was a specialist court called the ‘Court of Protection’, which had power to deal with financial issues. A person could also make an ‘Enduring Power of Attorney’, which gave legal authority to another person to deal with financial affairs after the person granting the power became mentally incapacitated. This was particularly useful for older people, who wanted to give authority to a relative to deal with finances when their own ability to do so declined.

However, the Court of Protection’s jurisdiction, and Enduring Powers of Attorney, were limited to financial issues, not medical or personal care issues. The Mental Health Act 1983 gave legal authority in certain circumstances to detain people so that they could receive compulsory treatment for their mental disorder, but did not provide a method to authorise any other types of care or treatment. The Commission sought responses on whether the law was satisfactory, and if not, how it should be reformed.

Some of the interested parties you might have thought should have been consulted:

  • People who objected to the original decision in Re F [1990] and wanted it to be reversed by legislation.
  • Groups or advocates representing people with mental illness or disability who wanted the law to promote better care and protection for people unable to make their own decisions.
  • Individual family members involved in the care of incapacitated people, or groups representing them.
  • Medical or healthcare professionals involved in the care of incapacitated people.
  • Lawyers representing incapacitated people, or their families or professional care-givers, or judges responsible for adjudicating such cases.

It should be obvious to you that some of these respondents might be asking for the law to be taken in inconsistent directions. Advocates for the rights of disabled people may want greater safeguards to prevent abuse or neglect of people who cannot protect themselves, while families and professionals may wish to make commonsensical decisions with a minimum of legal interference. People who have a religious or ethical objection to sterilisation or abortion may oppose these procedures in all cases where the person concerned cannot consent, while other respondents may feel that they are sometimes necessary to protect that person’s interests. In order to succeed, a law reform proposal may need to have sufficient support amongst a number of key groups (for example, the medical profession), but it is unlikely that it will satisfy everyone. Choices must be made, but if a proposal generates too much controversy, then its chances of implementation are reduced.

In the light of responses to the original consultation, the Law Commission decided to prepare three further consultation papers, making specific proposals in three different areas (but linked by consistent principles):

  • decisions about personal welfare and finances
  • medical treatment and medical research involving incapacitated people
  • protection of incapacitated people from abuse or exploitation.

However, the law does not stand still. While these consultation papers were being prepared, another major case reached the appeal courts, which will be discussed in Section 2.3.


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