Introduction -

In importance, the ‘Law Commissions’ Twelfth Programme of Law reform’ assertion

is that mutatis mutandis law is needed for fair reforms, thus eliminating inequity and
conflicting modern views; as far as England and Wales are concerned. 1 The Law
Commissions Act 1965 makes publication of this assertion. For instance, The Law
Commission being independent of government departments helps carry out its duties
faster. However, ties to already imitated commission work within the House of Lords
leads to harmful framing of certain acts following - the case of HL v United Kingdom,
which concerned a psychiatric inpatient deprived of his liberty without necessary
procedural safeguards - being testament to the undesirably of such elision.
Nevertheless, the question whether the Law commission is effective has academic
and policy value.2

Mental Capacity and Detention -

1
The Law Commission (LAW COM No 354) TWELFTH PROGRAMME OF LAW REFORM,
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/
335813/42263_HC_364_Law_Commission_354_Accessible.pdf accessed 2nd December 2019
2
HL v United Kingdom ECHR (Bailii, [2002] ECHR 850

1
Since the ‘An NHS Trust v Dr A’ case,3 the effects are that it was made “impossible
for [P] to be treated [under the MCA] ... without his “treatment”; rendering a patient
unable to be treated and unfairly depriving patients based on the location of care
received. Consequently, the proposed reform increases the use of the MCA to treat
MHA-detained patients, so the number of cases where an application is necessary
will likely increase. An astute counterargument against the proposed reform is that
the greater volume of applications to the courts counterproductively increases strain
on the judicial system. Evident in the official figures indicating only 43% of 195,840
DoLs cases were referred to local authorities in 2015-16 (highest number since the
DoLs were introduced).4 However, DoLs has created a vastly wider audience who
may have a greater chance of benefitting from its legal principles.

The MHA (1959) can be argued to create a more tortuous setting than expected as
its emphasis on notions of formality in places where informality is expected such as a
community care home5. However, Hale LJ and others argue it is to battle against risk
of stigma or unsettling ‘interests’ of doctors in informal settings. This suggests the
MHA helps defend against cases of prejudice, therefore it can be argued the Law
Commission has achieved some aims of fairness and to an extent simplicity (as
informal discussions are much more manageable and predictable than informal
ones).

Advancing from Ruch Keene law commissions report. On one hand, if the draft bill
were passed for authorising treatment for MHA-detained patients it would not require
navigating a legislative gap, meaning the issues of increased patients would be
reduced as patients would no longer need to fill tiresome applications, therefore
more cost-effective and more applicable to the population. 6 However, since the
outcome was that the bill was not passed meaning the law commissions efforts were

3
An NHS Trust v Dr A [2013] EWHC 2442 (COP)

4
Mental Capacity Act 2005, Deprivation of Liberty Safeguards (England), Annual Report 2015-16

5
Mental Capacity Act 2005
6
Mental Health Act (MHA) review (https://www.nsun.org.uk/faqs/mental-health-act-mha-review)
accessed on 2nd december 2019

2
ineffective and the cost of the 583 written consultation papers and time was not
successful in its mission.

Whilst the restrictive care and treatment scheme within DoLs negates the risks of de-
normalisation, it suffers from being overly complex to the average patient. Evident in
usage of the Care Act 2014 of the Social Services and Well-being (Wales) Act and
its Eligibility Criteria and the ‘can and can only’ requirements creating ambiguity, (ie;
conflicting limits of eligibility).7

Conclusion -

In conclusion, whilst the Law Commission provides a safe environment of care

regardless of location; the drawbacks lessen its effectiveness as the legal
frameworks within the programme are littered with inconveniences not compatible
with modern society.

7
Social Services and Well-being (Wales) Act 2014
(http://www.legislation.gov.uk/anaw/2014/4/contents) accessed on 2nd December 2019