Mental Incapacity

Current project status

• Initiation: Could include discussing scope and terms of reference with lead Government Department
• Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
• Consultation: Likely to include consultation events and paper, making provisional proposals for comment
• Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
• Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

Our recommendations were implemented in the Mental Capacity Act 2005 (c9)

Our decision to investigate the law relating to mental incapacity was made after a number of outside bodies drew problems and deficiencies in the present law to our attention. The Law Society in particular provided much of the stimulus for the review by publishing a discussion document in January 1986. An important case (Re F) heard in the Court of Appeal in January 1989 drew public attention to the fact that English law possessed no procedure whereby any other person or a court can take a medical decision on behalf of an adult patient without capacity to take that decision.

The programme item we published in September 1989 referred to suggestions that “existing legal mechanisms are complicated, inflexible and piecemeal” and stated that the decision in Re F could not provide a comprehensive solution. In April 1991 we published our first consultation paper, its aim being to provide an overview of this large and complex area which would enable us to assess the necessity for law reform and explore the best ways forward.