Re‐thinking the Mental Capacity Act 2005: Towards the Next Generation of Law
| Published date | 01 May 2023 |
| Author | Peter Bartlett |
| Date | 01 May 2023 |
| DOI | http://doi.org/10.1111/1468-2230.12774 |
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Modern Law Review
DOI:10.1111/1468-2230.12774
Re-thinking the Mental Capacity Act 2005: Towards
the Next Generation of Law
Peter Bartlett∗
It is now more than a quarter of a century since the Law Commission completed its ground-
breaking report on mental capacity, a report that became the Mental Capacity Act 2005. Since
that time, there have been fundamental changes in the legal, social, and academic under standing
of people with mental disabilities,and the pragmatics of leg islativeimplementation have exposed
diculties that the Law Commission did not foresee.This paper considers key elements of the
Act in light of those changed expectations and the experience of implementation
INTRODUCTION
The Law Commission commenced its work on reform of mental capacity law
in 1989, work which was eventually reected in the Mental Capacity Act 2005
(MCA 2005). All legal controls were made decision- and time-specic, with
capacity determined according to a statutory test, and decisions made on new
statutory criter ia that considered matters from the perspective of the individual
about whom the decision was to be taken. There is nothing in English law
that corresponds to the ongoing and controlling conservatorship and tutelage
administrative structures of other European jurisdictions, or the guardianships
or wardships of other common law jurisdictions. Legal personhood in English
law is never removed. It was a revolutionary project that still puts England
near the forefront internationally of law and practice, and ground-breaking
legislation of which England could be justly proud.
And proud of it we were and are. The overwhelming preponderance of evi-
dence to the House of Lords ad hoc committee on implementation of the Act
in 2014 supported the principles and overall approach of the Act as passed in
2005.1There were reservations about the 2007 amendments to the Act con-
cerning deprivations of liberty,but the core of the Act garnered real enthusiasm.
That said, the bloom has at least to some deg ree come o the rose. Questions
have been raised about how eectively implementation has occurred,2and
there are certainly practical lessons to be learned from the MCA 2005 expe-
rience about the realities and ecacy of legal regulation in the capacity realm.
∗Nottinghamshire Healthcare NHS TrustProfessor of Mental Health Law,University of Nottingham.
I would wish to thank Alex Ruck Keene and Jean McHale for commenting on a draft of this article,
and two anonymous reviewers for their comments. Errors are, of course, my responsibility.
1 Mental Capacity Act 2005: post-legislative scrutiny, HL 139 (2014).
2ibid.
© 2022 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(3) MLR 659–700
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits
use and distribution in any medium, provided the original work is properly cited,the use is non-commercial and no modications or
adaptations are made.
Re-thinking the Mental Capacity Act 2005
The legal context has fundamentally changed. The Disability Discrimination
Act was passed only in 1995,3the year the Law Commission published its nal
report. The suggestion, now very much in the literature, that mental capacity
law in itself might be inherently discriminatory has developed entirely since
that time.4The human r ights framework has completely changed, with a signif-
icant and expanding jurisprudence from the European Court of Human Rights
developing almost entirely since the Law Commission report. The United
Nations Convention on the Rights of Persons with Disabilities (CRPD) has
fundamentally challenged the traditional thinking on regulation of disability,
with the CRPD Committee questioning whether we should be using capacity
as a legal structure at all.5There are also conceptual issues. Related areas of
law – most notably social welfare law and health law – are markedly changed.
Disability studies, now an established scholarly eld, had barely begun. The
social model of disability that has in the last thirty years become so prevalent in
England was a marginal theory when the Law Commission reported in 1995:
Michael Oliver published The Politics of Disablement,perhaps its rst foray into
the mainstream, only in 1990.6The theorisation of the borderline between
disability and vulnerability has fundamentally changed, through works by
scholars such as Martha Fineman.7And, of course, legal theor y has moved on.
English socio-legal studies was in its infancy in the early 1990s, and it has since
been supplemented by post-modernism and critical theory. Legal dividing
lines and categories that were taken for granted in the early 1990s are now
increasingly questioned.8
Almost a third of a century has now passed since the intellectual heavy
lifting that gave rise to the MCA 2005, and the world had changed. The time
is ripe for reection, and this paper is a contribution to that process. It starts
with the thinking of the Law Commission. It continues by exploring the
big issues that we did not foresee: a fundamental change in how people with
3 North American jurisdictions were somewhat earlier than this: see for example Americans with
Disability Act 1990 and the Canadian Charter of Rights and Freedoms 1982, s 15.
4 See for example P. Bartlett, ‘The United Nations Convention on the Rights of Persons with
Disabilities and Mental Health Law’ (2012) 75 MLR 752; B. Clough, ‘New legal landscapes:
(Re)constructing the boundaries of mental capacity law’ (2018) 26 Medical Law Review 246;
L. Pritchard-Jones, ‘“This Man with Dementia” – “Othering” the Person with Dementia in
the Court of Protection’ (2017) 24 Medical Law Review 518;M. Donnelly,‘Best interests in the
Mental Capacity Act: Time to say goodbye?’ (2017) 24 Medical Law Review 318.
5 United Nations, Committee on the Rights of Per sons with Disabilities (CRPD Committee),
General comment No 1,Ar ticle 12: Equal recognition before the law,CRPD/C/GC/1 (2014).
6 Michael Oliver, The Politics of Disablement (London: Macmillan, 1990).
7 For example M. Fineman, The Autonomy Myth (New York,NY: New Press, 2004); M. Fineman,
‘The vulnerable subject: anchoring equality in the human condition’ (2008) 20 Yale Journal of
Law and Feminism Article 2; M. Fineman and A. Grear, Vulnerability:Reections on a New Ethical
Foundation for Law and Politics (Farnham: Ashgate, 2013).
8 Of particular relevance to the present paper is B. Clough, The Spaces of Mental Capacity Law
(Abingdon: Routledge, 2022), probably the best legal theoretical analysis of mental capacity
law currently available.Clough places mental capacity law at the intersection of a number of
perceived binaries that are not, in her view, neat divisions at all: capacity/incapacity, auton-
omy/paternalism, empowerment/protection, carer/cared-for,disabled/non-disabled, and pub-
lic/private. There are signicant points of intersection between the present paper and Clough’s
work and elements of her analysis will be noted below, but a detailed engagement involves a
discussion of the nature of law itself, and is thus beyond the scope of the present paper.
660 © 2022 The Authors.The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(3) MLR 659–700
Peter Bartlett
disabilities are understood, the central role of professionals in administration of
the MCA 2005, and the resurgence of process and legalism in the new Court
of Protection. It goes on to explore how these changes aect key terms of the
MCA 2005, most notably the core concepts of ‘incapacity’ and ‘best interests’.
The nal substantive section considers how all these issues come together in
light of changes to the administration and legal regulation of care provision.
All of these pose real challenges to the Law Commission model.
THE LAW COMMISSION REPORTS, THE MCA 2005, AND THEIR
CONTEXT
The Law Commission commenced its work in 1989. The parens patriae juris-
diction of the Crown over adults lacking capacity had been abolished in the
reforms leading to the Mental Health Act 1959, and replaced by statutor y pro-
visions. For decisions relating to personal care, these were based on existence of
a mental disorder (not necessarily resulting in incapacity), and gave the guardian
the powers of a father over his four teen-year-old child.9These powers were
signicantly curtailed in 1983, when the guardian could merely deter mine
where the individual would live (but with no power to detain him or her there),
and require the individual to attend for care and treatment and to ensure access
by doctors (but no power to consent to treatment on the individual’s behalf).10
This meant there was no clear legal power or author ity to make many key
decisions on behalf of an individual who was unable to make those decisions
himself or herself. For issues of consent to medical treatment, the issue was
addressed by the House of Lords in 1989 in Re F (Mental Patient: Sterilisation)11
(Re F), where it was held that medical treatment in the best interests of a
person who was unable to consent would not constitute a battery, but this was
perceived as something of an ad hoc solution to a more fundamental set of
problems within the legal framework.There was perceivedto be a lacuna in the
law.
While that provided the immediate context for the establishment of the Law
Commission’s work, that body also considered the law relating to nancial and
similar (‘property and aairs’) decision-making as part of the package. These
were also contained in the Mental Health Act 1983. Unlike the guardianship
rules, they were capacity based, but without a clear denition of capacity. They
were all or nothing in their approach – a patient (to use the term of the Act)
could make either all property and aairs decisions, or none – and while the
decisions in question involved f airly fundamental legal rights,they were decided
by administrators rather than a formal court.
The Law Commission published a consultation document in 1991 and
three more in 1993, before its nal report in 1995.12 Those were followed by
9 Mental Health Act 1959, s 34(1).
10 Mental Health Act 1983, s 8.
11 Re F (Mental Patient: Sterilisation) [1990] 2 AC 112.
12 Law Commission, Mentally Incapacitated Adults and Decision-Making: An Overview CP 119 (1991);
Law Commission, Mentally Incapacitated Adults and Decision-Making: A New Jurisdiction CP
© 2022 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(3) MLR 659–700 661
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