The Mental Capacity Act 2005 governs personal decision-making for adults. It incorporates five overarching principles, including that incapacity may not be inferred merely from a person’s unwise decisions, and that where a person lacks capacity decisions must be made in her best interests. Through analysis of judicial treatment of unwisdom, best interests, subjectivity, and objectivity, considered against Parliamentary debates on the Mental Capacity Bill and philosophical critique of ideas of (un)wisdom, we argue that these principles are problematically irreconcilable. The Act’s radical under-specificity means, paradoxically, that these come to be resolved through abstracted values, rather than the centricity of the person herself.
Bibliographical noteFunding Information:
* Centre for Health, Law and Society, University of Bristol Law School. Address for Correspondence: University of Bristol Law School, 8-10 Berkeley Square, Bristol, BS8 1HH, UK. Email: John. Coggon@bristol.ac.uk. We are grateful to the Arts and Humanities Research Council for its support through the Judging Values and Participation in Mental Capacity Law project (AHRC Grant Reference: AH/R013055/1). Many thanks to our colleagues on the project, Penny Cooper, Michael Dunn, Rebecca Stickler, Victoria Butler-Cole QC and Alex Ruck Keene, for their comments and sug-gestions in relation to this paper. Thanks also to Suzanne Doyle Guilloud, Sara Fovargue, Stephen Latham, Stephen W. Smith and Cameron Stewart and two anonymous reviewers for their supportive and detailed comments. We are grateful too to colleagues at the 2019 Society of Legal Scholars Annual Conference’s Medical Law stream and attendees at a Southampton Law School Centre for Health, Ethics, and Law seminar at which earlier versions of this paper were presented. The views expressed in the paper are those of the authors. ** Institute for Crime and Justice Policy Research, Birkbeck, University of London. 1 The MCA also applies to children aged 16 and 17, for whom legal decision-making capacity does not apply in the same way as for adults. Our focus in this paper is on the law as it relates to adults.
Copyright © Cambridge Law Journal and Contributors 2021.
- Mental Capacity
- Best Interests
- Unwise Decisions
- Objective Values
- Subjective Values
- Personal Decision-Making