Joint Committee on the Draft Mental Incapacity Bill Written Evidence

58.Memorandum from the Law Commission (MIB 203)

  1.  The Law Commission, which was established by Act of Parliament in 1965, is the permanent independent law reform body for England and Wales. Our main purpose is to make recommendations to Government for changing the law. About two-thirds of our reports have been implemented (wholly or in part) by legislation.

  2.  Publication of the draft Mental Incapacity Bill is the latest step towards legislative reform of the law on mental incapacity. In that process, the Law Commission has taken a leading role. Under the supervision of Law Commissioner Professor Brenda Hoggett, now Lady Justice Hale, the Commission published four consultation papers between 1991 and 1993, and concluded its examination of the subject with its Report on Mental Incapacity (Law Com No 231) in February 1995. That Report contained a Mental Incapacity Bill, drafted by Parliamentary Counsel.

  3.  The case for legislation was very strong in 1995, and remains so. Since publication of Law Com No 231, the Law Commission has pressed for governmental acceptance of the recommendations in the Report and for a Bill to be laid before Parliament. Other interested bodies, such as the Law Society and the Royal College of Psychiatrists, have added their support to the case for legislative reform. The Law Commission welcomes the fact that the Government intends Parliament to have the opportunity to legislate on Mental Incapacity and it recognises that, in most respects, the draft Mental Incapacity Bill adopts and gives effect to the recommendations of the Law Commission in Law Com No 231. Although the draft Bill might appear to be quite dissimilar from the Bill annexed to the Law Commission Report, on close analysis much of the difference is attributable to the nuances of Parliamentary draftsmanship There are however some important substantive differences which we should draw to the attention of the Committee.

    (a)  The most significant omission from the draft Bill concerns the recommendations we made in Law Com No 231 (Part IX) for the protection of vulnerable people at risk. We proposed a wide definition of "vulnerable person" to include any person (aged 16 or over) who is or may be in need of community care services by reason of mental or other disability, age or illness and who is or may be unable to take care of himself or herself, or unable to protect himself or herself against significant harm or serious exploitation. We recommended that, where local authorities have reason to believe that a vulnerable person in their area is suffering or is likely to suffer significant harm or serious exploitation, they should be under a statutory duty to investigate and to provide or arrange community care services or to take other action to protect that person. We argued that in order to discharge this duty effectively, the authority required powers of entry, and the court should be empowered to make assessment orders and temporary protection orders. Criminal liability could be incurred by those obstructing the local authority in the exercise of these powers or any person acting pursuant to an assessment order or temporary protection order. We also recommended that local authorities should have powers to assist a vulnerable person in bringing proceedings for an order under the private law (such as a non-molestation order or an ouster order) and to take reasonable steps for the protection of the property and affairs of a person who is without capacity to protect them and for whom they provide or arrange accommodation.

    (b)  Part IX was integral to our recommendations and we regret its omission from the draft Bill. Our consultees had supported the reform of public intervention on the ground that the existing law was "ineffective in protecting elderly, disabled and other vulnerable people from abuse and neglect, and inadequate in its approach to issues of autonomy and individual rights." (Law Com No 231, para 9.1).

    (c)  The draft Bill confers "general authority" on a person providing care for another who lacks capacity to do an act which it is in all the circumstances reasonable to do. The restrictions placed on that general authority are narrower than those recommended by the Commission in Law Com No 231. Part VI of that Report stated the case for independent supervision of certain serious medical interventions (sterilisation, tissue or bone marrow donation, abortion, treatments for mental disorder, withdrawal of artificial nutrition and hydration, non-therapeutic research procedures) which we believe should require, depending on the type of intervention, court approval and/or an independent second opinion or some other kind of supervisory mechanism. These recommendations are not given effect to in the draft Bill.

    (d)  Our recommendations concerning advance decisions to refuse treatment are largely carried forward. The draft Bill does not however give effect to our recommendation, based on public policy grounds, that an advance refusal should not preclude the provision of "basic care" to maintain bodily cleanliness, to alleviate severe pain and to provide direct oral nutrition and hydration (Law Com No 231, para 5.34). But it may be that the general law already recognises this.

    (e)  The draft Bill does not appear to make adequate provision for access to the health records of the person who lacks capacity. It is important to provide for such access to allow the deputy to make informed decisions as to treatment and health care (Law Com No 231, para 8.23).

  4.  We recognise that most of these changes are the result of earlier Government consultations. The Commission hopes that legislation dealing with Mental Incapacity will shortly be enacted. In view of the time, which has elapsed since publication of Law Com No 231, there is little that the Commission itself can currently offer by way of assistance to the Committee, as none of the Commissioners, or legal staff, involved in the Mental Incapacity project remain at the Commission. We do however understand that Lady Justice Hale, as the former Commissioner in charge of the project, would be happy to offer the Committee examining the Bill such assistance as she can provide and we will give her such support as we can. She can be contacted at the Royal Courts of Justice, Strand, London WC2A 2LL or by email at

August 2003

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