Depression and Consent to Treatment: The Limits of a Capacity Based Approach

Abstract

Operating from a perspective that recovery represents an appropriate normative goal, this chapter critically evaluates the way in which law addresses decision-making capacity in the context of depression, focussing on decisions in respect of treatment (both treatment for the depressive condition itself and for other conditions which are not directly linked to the depression). Although the chapter addresses the legal framework in England and Wales, broadly similar arguments could be made in respect of the legal position in many other developed jurisdictions. Drawing on phenomenological insights, in particular the work of Matthew Ratcliffe on experiences of depression, the chapter identifies difficulties in applying the legal standard for decision-making capacity in the Mental Capacity Act 2005 (MCA) to people with severe depression and advocates a shift in normative approach which would ground the legal framework in recovery norms rather than autonomy/capacity norms (although recognising that the two will overlap in many situations).