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

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Changing law: mental capacity legislation

3.3 Reactions from Parliament and the Government

Although the Law Commission had carried out a series of consultations, it was not the only body considering the issue. Within Parliament, the House of Lords Select Committee on Medical Ethics considered the issue, and reached its own conclusions (1994). (The Chairman summarised its conclusions and its responses to the Law Commission’s work in a speech in Parliament [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] ).

The Government published its own consultative Green Paper, Who Decides (Lord Chancellor’s Department, 1997). This was followed by a White Paper, Making Decisions (Lord Chancellor’s Department, 1999). Although the response to the Green Paper supported many of the recommendations made by the Law Commission, the Government’s position on advanced decisions about medical treatment was more cautious.

When reading Government White Papers there are a number of questions that can be considered regarding them. For instance with regard to the Government’s White Paper, Making Decisions (Lord Chancellor’s Department, 1999), the following questions could be considered:

  • a.What does the Government say (in the Introduction, paras 13–20) that it intends to do about the law in relation to ‘advance statements’ about healthcare?
    • The Government proposed to leave these controversial issues to be dealt with by the courts, rather than to include them in legislation. The White Paper stated:
    • 16. The Government believes that a clear statement of the present legal position concerning advance statements would be helpful to lawyers, doctors and patients. The current law and medical practice is as follows. It is a general principle of law and medical practice that all adults have the right to consent to or refuse medical treatment. Advance statements are a means for patients to exercise that right by anticipating a time when they may lose the capacity to make or communicate a decision.
  • b.If the Government introduced legislation to deal with other aspects of the law in relation to mentally incapacitated adults, what are the advantages and disadvantages of leaving the legal impact of advanced medical decisions to be decided by the courts on a case-by-case basis?
    • The Law Commission’s recommendations were designed to provide clear, comprehensive law reform, dealing with all aspect of mental incapacity law. Arguably, to leave certain highly controversial aspects to be dealt with by the courts would defeat this objective. Also, even if legislation was introduced into Parliament without these provisions, it might be difficult to prevent their re-introduction through amendments to the Bill.
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