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

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Changing law: mental capacity legislation

4 Interpreting, applying and challenging the law

The developments in law which you are considering in this course began with court decisions revealing a ‘gap’ in the law. These cases developed the common law in an attempt to fill this gap as far as possible to deal with individual cases, but also highlighted the need for comprehensive law reform. The Mental Capacity Act 2005 attempted to fill this gap with legislation. Of course, this is not the end of the story, but the beginning, as the courts continue to interpret and apply the statutory provisions to individual cases.

The Mental Capacity Act 2005 has been applied in many interesting and controversial cases.

Most of these cases involve the application of the legislation to the facts of a particular case. However, some particularly complex issues arise from the interaction between the law of mental capacity, the closely related law of mental health, and the impact of human rights law.


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