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Introduction

THE METHOD OF CONSULTATION adopted by the Law Commission in relation to this project was (after referring what we proposed to the Ministries of Health and Justice) to circulate on 11 February 2002 a draft of the present report under cover of the letter (a copy of which is set out as appendix A) to the recipients described in that letter. Subsequently, we received requests from others for copies of the draft and these were duly furnished. We received submissions from the persons and organisations listed as appendix B. The number of such submissions and the eminence in their various fields of many of those who made them demonstrate the effectiveness in this case of the consultative process adopted. The Law Commission is grateful for the help so readily provided.

In paragraphs 2, 3 and 4 of the report we sketch the recent history that forms the backdrop to the request to the Law Commission to embark upon the present project. It is plain from the submissions we have received that the polarisation in viewpoints that this history illustrates still exists. The essentials of the solution that we propose were strongly supported by most of those from whom we received submissions. But there are those who are and will doubtless continue to be unhappy with our proposals. Such dissent reflects (to oversimplify issues that we accept are more finely nuanced than our brief description conveys) two main areas of disagreement. One is concerned with the basic ethical question of how challenging behaviour should be viewed and responded to. To take a concrete example with which the Family Court regularly has to deal, is compelling an aged person to transfer from his or her own familiar home to some sort of residential care on the ground that the individual concerned is as a result of a physical or mental decline living in dangerous squalor, justifiable benevolence or insufferable governmental bossiness? There is no one right answer to such questions.

The other is the profound distrust some people have of the institutions charged with responsibilities in relation to disadvantaged people, including in particular those providing residential care and not excluding the Family Court. On this point it needs to be remembered that while in framing its recommendations the Law Commission must take into account the possibility of the existence of institutional imperfections, there are limits to what can be achieved by passing Acts of Parliament. The most that a law commission can hope to do is to propose a suitably robust legal foundation on which others can and should erect appropriate professional practices.

The Commissioner having the carriage of this project was DF Dugdale and the researcher was Helen Colebrook.