8. Where can I find out more about the history of the Mental Capacity Act 2005 and the Court of Protection?

The roots of the MCA lie in a case called F v West Berkshire HA [1991].  The case was about whether doctors had legal authority to treat a person whom they regarded as lacking capacity to consent to that treatment. The case involved sterilization of an adult woman with learning disability.  The House of Lords held that if a person ‘lacks capacity’ and the treatment is necessary in their best interests then the doctors could rely on the common law doctrine of necessity as a defence to an action in battery.  In other words, if the doctors considered  that F lacked capacity to make decisions about the sterilization operation, and they believed it was in her best interests, then nobody – including F – could sue them for carrying out the operation without her consent.  Over the years the courts developed a further body of case law adding to and refining this judgment, and these rulings formed the basis of sections 1-6 of the MCA 2005.  The defence created by the court in F v West Berkshire HA is now contained within s5 MCA and is sometimes called the ‘general defence’.

During the 1990s the Law Commission embarked upon a program of research on ‘incapacity’ and arrived at a set of recommendations based on the developing case law.  Most of their recommendations were eventually incorporated into the MCA.  You can read their reports on the BAILII website under ‘M’.  The government embarked upon a consultation (1997, 1999) and Parliament scrutinized the draft Bill.  An influential alliance of disability NGOs and professional bodies  – the Making Decisions Alliance – lobbied for the Bill to be passed, and succeeded in securing some amendments to it – including provision for IMCAs.  The Bill was nearly derailed by debates about Advance Decisions, with some concerns that their adoption  might introduce ‘euthanasia by the back door’.  In the end the MCA was passed after the government introduced a specific clause saying that ‘For the avoidance of doubt, it is hereby declared that nothing in this  Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961’.

The MCA was later amended by the Mental Health Act 2007 to introduce the Deprivation of Liberty Procedures, described here.  In 2013 the House of Lords set up a Select Committee on the MCA to scrutinize evidence on the Act.  The Committee will report in March 2014.  In 2013 the House of Commons Health Committee conducted post-legislative scrutiny on the Mental Health Act 2007 – which included the MCA deprivation of liberty safeguards (DoLS).  The Committee described the evidence it heard about the application of the DoLS as ‘profoundly depressing and complacent’, and recommended that the Department of Health should conduct an urgent review of their operation, to report back in 2014 (you can read the report here).