Judging Values and Participation in Mental Capacity Law

Camillia Kong,John Coggon,Michael Dunn,Penny Cooper

doi:10.3390/laws8010003

Abstract

Judges face a challenging task in determining the weight that ought to be accorded to the person (P)’s values and testimony in judicial deliberation about her capacity and best interests under the Mental Capacity Act 2005 (MCA). With little consensus emerging in judicial practice, incommensurable values drawn from divergent sources often collide in such cases. This paper outlines strict and flexible interpretations of the MCA’s values-based approach to making decisions about capacity and best interests, highlighting the problematic implications for the normative status of P’s values and the participatory role of P in judicial deliberations. The strict interpretation draws a false separation between ascertaining P’s values and the intrinsic value of enabling P’s participation in court proceedings; meanwhile, the flexible interpretation permits judicial discretion to draw on values which may legitimately override the expressed values of P. Whether in the ambiguous form of internal and/or extra-legal judicial values, these value sources demand further scrutiny, particularly regarding their intersection with the values held by P. We offer provisional normative guidelines, which set constraints on the appeal to extra-legal values in judicial deliberation and outline further research pathways to improve the justification around judicial decisions regarding P’s participation.

Highlights

The Mental Capacity Act 2005 (MCA) in England and Wales is an explicitly values-based piece of legislation designed to empower persons who are the subject of proceedings (P), by protecting the principle of autonomy for individuals with impairments and making their subjective wishes and feelings central in judgments about their best interests when they are deemed to lack mental capacity.1The imperative to protect the autonomy of individuals is evident in the presumption of capacity,2 the requirement that all practicable steps are taken to enable persons to make a decision3 as well as the requirement that unwise decisions are not treated as evidence of decisional incapacity.4 The MCA further adheres to a best interests model of decision-making should persons be found to be lacking capacity
Rather than a means to an end, which helps ensure that P’s values are heard and considered when making decisions that will affect her life, participation can function as the constitutive expression of substantive values potentially shared by P and those involved in the court proceedings
We have suggested how the strict interpretation of the MCA’s values-based approach tends to rest on a false separation between ascertaining P’s values and enabling P to participate in proceedings

Summary

Introduction

The Mental Capacity Act 2005 (MCA) in England and Wales is an explicitly values-based piece of legislation designed to empower persons who are the subject of proceedings (P), by protecting the principle of autonomy for individuals with impairments and making their subjective wishes and feelings central in judgments about their best interests when they are deemed to lack mental capacity.. The intent of the paper should be distinguished from debates around mental and legal capacity, those which focus on what might be considered first-order issues of how the wishes and values of P are to be respectfully enacted through supported decision-making or are effectively trumped (il)legitimately through substituted judgment regimes These cases are identifiable when the values deemed important to the court are used to effectively override the wishes of P, even when competent.. This is not to say that the first-order questions are unrelated to our concerns here Current discussions at this level tend to revolve around the connection between respect for P’s values, recognition of equality under the law, and the illegitimacy of substituted judgement in best interests decision-making, especially under the CRPD (Bach and Kerzner 2010; Arstein-Kerslake and Flynn 2016; for a nuanced discussion in relation to the MCA, see Donnelly 2016). DK’s unrelated Deputy of Property and Property of Affairs sought the order to be able to make an application for a statutory will upon determining whether he did have a daughter

The Empowerment and Participation of P

The MCA as Values-Based Legislation

Are Extra-Legal Values Justified in Mental Capacity Law?

Future Directions