The Place of Values and P’s Participation in Mental Capacity Law: Themes, Synergies and Tensions

Abstract

This chapter concludes the book Capacity, Participation and Values in Comparative Legal Perspective. We draw together key themes and observations from across the book’s chapters, which focus on mental capacity – or guardianship – laws across different jurisdictions, seeking to learn whether and how a person for whom a decision is being made under such laws is empowered to participate in the decision making, and to understand how that person’s values are identified and brought into decisions. The book invites reflections on similarities and distinctions in uses of technical language, and shared or overlapping legal framings and approaches. However, it also provides the basis of deeper-seated observations. These include points of clashing principle within the aims of laws: for example where tensions arise between empowerment, equality, dignity, welfare and respect for a person’s wishes and values (to name just a few). In light of such principled challenges, we examine two salient themes that we perceive in the book: first, how laws and their application belie the myth of liberal neutrality, notwithstanding efforts to achieve a detachment from moral judgement within mental capacity laws; second, how legacies of oppression and/or colonialism bear on the interrelationships between individuals, communities and the state under mental capacity laws.