3.1 The Law Commission’s proposals
In 1995, the Law Commission published its final report, Mental Incapacity, which included draft legislation (Law Commission, 1995).
The report stated that the policy aims underlying these recommendations were:
- i.that people are enabled and encouraged to take for themselves those decisions which they are able to take;
- ii.that where it is necessary in their own interests or for the protection of others that someone else should take decisions on their behalf, the intervention should be as limited as possible and should be concerned to achieve what the person himself would have wanted; and
- iii.that proper safeguards should be provided against exploitation and neglect, and against physical, sexual or psychological abuse.
The draft legislation included a statutory definition of incapacity, which can be summarised as follows:
- A person should be regarded as unable to make a decision if ‘at the material time’ he or she is:
- a.unable by reason of mental disability to make a decision on the matter in question, or
- b.unable to communicate a decision on that matter because he or she is unconscious or for any other reason.
- ‘Unable to make a decision’ means:
- a.being ‘unable to understand or retain the information relevant to the decision, including information about the reasonably foreseeable consequences of deciding one way or another or of failing to make the decision’, or
- b.being ‘unable to make a decision based on that information’.
The term ‘mental disability’ means ‘a disability or disorder of the mind or brain, whether permanent or temporary, which results in an impairment or disturbance of mental functioning’.
and also included recommendations regarding the factors to be taken into account by someone who is making a decision on behalf of an incapacitated person, which can be summarised as follows:
- the ascertainable past and present wishes and feelings of the person concerned and the factors which he or she would consider if able to do so
- the need to permit and encourage the person concerned to participate, or to improve his or her ability to participate, in anything done for and any decision affecting him or her
- if it is practicable and appropriate to consult them, the views as to that persons wishes and feelings and as to what would be in the best interests of that person of:
- any person named by him or her as someone to be consulted
- any person (such as a spouse, relative or friend or other person) engaged in caring for or interested in the persons welfare
- the donee of a continuing power of attorney granted by him or her
- any manager appointed by the court.
- whether the purpose for which any action or decision is required can be as effectively achieved in a manner less restrictive of the person’s freedom of action.
These ‘best interests’ factors gave some weight to the wishes and feelings of the incapacitated person if possible (both before and after their incapacity). However, the Law Commission also recommended that decisions made by a person before they became incapacitated should continue to have legal effect after the person has lost capacity and that the impact of such advanced decisions should be made clear by their proposed legislation. Although this involved little more than placing one aspect of the Airedale NHS Trust v Bland  decision on to a statutory footing, possibly with greater clarity and safeguards, decisions about withholding life-saving treatment are always likely to be controversial. Some of the ensuing controversy is discussed in Section 3.2.