Freedom Isn't Free: Resource Limits On Person-Centred Best Interests Decisions Under The Mental Capacity Act

Best interests under the Mental Capacity Act 2005 has been cast as an empowering, person-centred process that protects a person’s rights and freedom of action. In practice this laudable goal is constrained by monetary and temporal resources. Drawing on a qualitative study which encompassed the views of patients, carers, healthcare professionals and lawyers, we observe that, where resources are inadequate, the quality of decision-making declines and the options on offer are restricted. While austerity has disproportionately disadvantaged people with disabilities and additional needs in numerous ways, in mental capacity law the impact of this is evident in the gap between the protection of procedural and substantive rights offered by the law. While the courts deal robustly with challenges to ‘faulty’ procedure, challenging substantive issues is difficult and has limited prospects of improving outcomes, even if the decision is clearly inadequate in any sensible interpretation of the court’s aspiration to person-centredness. Tracing these differences back to the different logics of the European Convention on Human Rights and the United Nations Convention on the Rights of Persons with Disabilities, we argue that, as things currently stand, the law cannot resolve these issues, dooming the aspiration to person-centredness to remain constrained and provisional.