ABSTRACT
Comment The Law Commission (1995) stated: ‘We recommend that there should be a presumption against lack of capacity and that any question whether a person lacks capacity should be decided on the balance of probabilities’ (clause 2(6) of the draft Bill). This has been accepted by the Government and in the future will be given a statutory footing (Lord Chancellor, 1999). See also clauses 1(1) and 2(3) of the draft Mental Capacity Bill 2004 (which is supported by the Joint Scrutiny Committee’s Report Session 2002-03).
