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

Start this free course now. Just create an account and sign in. Enrol and complete the course for a free statement of participation or digital badge if available.

Free course

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.

Take your learning further371

Making the decision to study can be a big step, which is why you'll want a trusted University. The Open University has 50 years’ experience delivering flexible learning and 170,000 students are studying with us right now. Take a look at all Open University courses372.

If you are new to university level study, we offer two introductory routes to our qualifications. Find out Where to take your learning next?373 You could either choose to start with an Access courses374or an open box module, which allows you to count your previous learning towards an Open University qualification.

Not ready for University study then browse over 1000 free courses on OpenLearn375 and sign up to our newsletter376 to hear about new free courses as they are released.

Every year, thousands of students decide to study with The Open University. With over 120 qualifications, we’ve got the right course for you.

Request an Open University prospectus371