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.

Addressing the false dichotomy between autonomy and preservation of life: Clinical, legal, and ethical considerations in severe and longstanding anorexia nervosa.

In this article, I explore how the mental health and mental capacity laws in England and Wales can be used for suicide prevention. I criticise the use of compulsion for persons diagnosed with a mental disorder who nonetheless retain decision-making capacity and argue for a greater reliance upon capacity as a distinguisher between autonomous decision-making about the end of life and the risk to life posed by symptoms of mental illness. The label of 'suicide' is also criticised as an outdated legal notion carrying pejorative meaning. Although focused on the law in England and Wales, the arguments apply much more broadly to all jurisdictions seeking to reconcile the demands of respect for life and respect for autonomy.

In Northern Ireland, the current main legal framework for compulsory intervention is the Mental Health (Northern Ireland) Order 1986. It is a traditional mental health law which enables detention in hospital if mental disorder and risk criteria are met. However, under Article 3(2), it states that people should not be detained "by reason only of personality disorder". There has been a process of law reform in Northern Ireland to create a non-discriminatory, comprehensive legal framework for all. This resulted in the Mental Capacity Act (Northern Ireland) 2016. The Act, when fully implemented, will replace the Order for everyone aged 16 and over, which is in contrast to most other countries where there are both mental health and mental capacity laws. Under the new Act there are no specific exclusions so, if a person is unable to make the relevant decision, including if the cause of impairment relates to issues associated with personality disorder, then compulsory intervention is allowed as long as the proposed intervention is in the person's 'best interests'. The Act was partially implemented in 2019 and currently is only used when the Order does not apply. This article explores: the development of this new legal framework; the implementation of the Act; and some of the ongoing debates, and practice complexities, related to services for people with a diagnosis of personality disorder.

Unified mental health and capacity law: Creating parity and non-discrimination?

Abstract The Convention on the Rights of Persons with Disabilities (CRPD) requires a reconceptualised approach to rights enjoyment by persons with mental disabilities promoting equality through support, institutional and environmental adjustments, and envisaging ‘protection’ in terms of all rights enablement and not rights restriction. Mental health and capacity law has tended to focus exclusively on authorizing and regulating non-consensual interventions, contrary to the CRPD message. Scotland’s current mental health and capacity law is no different. The terms of reference of the 2019–22 independent review of this law included making recommendations on CRPD realization. The resultant recommendations sought to strengthen the voice of persons with mental disabilities, reduce psychiatric coercion, and secure the enjoyment of all rights whilst providing an aspirational but workable basis for achieving CRPD alignment. It proposed a new model for mental health and capacity law, centred on reconceptualising mental health and capacity law to take account of realization of all categories of human rights, equality in the enjoyment of such rights, and reduction of non-consensual measures. This article will consider the practical and conceptual CRPD implementation challenges faced by Scotland and other countries, and the Review’s recommendations, seeking to address them in their wider context.

B Clough (ed) The spaces of mental capacity law: Moving beyond binaries (2022)

This article examines the law on mental capacity in Ireland and Northern Ireland. It sets out key provisions in the Mental Capacity Act (Northern Ireland) 2016 (MCA (NI)) and the Assisted Decision-Making (Capacity) Act 2015 (ADMCA). The slow legislative progress in Ireland and Northern Ireland requires closer examination, particularly due to the unique links between the jurisdictions. Both Northern Ireland and Ireland have ratified the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD), and this article considers how both legislative models align with human rights obligations under the CRPD. The ‘fusion‘ model of legislation adopted in Northern Ireland represents an experimental approach, retaining provisions on substitute decision-making but placing a greater emphasis on supporting persons to make decisions. The legislation in Ireland also adopts an experimental approach placing a premium on supported decision-making, while also retaining substitute decision-making provisions. The article evaluates the jurisprudence of the Committee on the Rights of Persons with Disabilities on article 12, using it as a lens to assess the MCA (NI) and the ADMCA. By comparing the principles underpinning the legislative frameworks, best interests in the MCA (NI) and will and preferences in the ADMCA, and the different approaches to capacity assessment, this article argues that the ADMCA aligns better with the CRPD’s requirements. The ADMCA in Ireland and the fusion model in Northern Ireland are gaining international attention for their experimental approaches to capacity legislation reform and seeking alignment with article 12 of the CRPD. While these models aim to enhance autonomy, respect human rights and move away from restrictive systems, their effectiveness in practice requires further research to identify operational challenges and ensure alignment with the CRPD. These models offer valuable insights for global capacity law reform initiatives.

Capacity and incapacity: An appropriate border for non-consensual interventions?

Mental health and capacity laws applicable to children and young people in Northern Ireland (NI) lack clarity and coherence, with significant gaps in service provision and safeguarding. Drawing on an examination of such laws, we argue that law reform is needed. In the short term, we suggest there is merit in publishing statutory guidance, such as a Code of Practice, to address both the issue of evolving capacity in children and to facilitate best practice in policy and practice. This modest reform in the short term should be accompanied by a firm political commitment to ensuring that NI’s innovative fusion mental capacity legislation is fully brought into force in the medium term. Meanwhile, law reform should form part of a holistic approach on the part of NI’s policy-makers towards improving mental healthcare provision for children and young people in line with a human rights-based approach. This would include the following: increased allocation of funding and resources to facilitate more timely access to suitable treatment and related services; enhancing participation in policy, judicial, and clinical decision-making that impacts their lives; and employing a range of executive accountability mechanisms to drive improvements in such provision over time.

The Mental Capacity Act 2005 in England and Wales and Singapore’s Mental Capacity Act 2008 (which substantially transplants provisions from the former statute) might appear to be twins on paper, but they have gone on to lead very different lives. In this article, we examine how two broadly identical laws have taken on divergent identities within their respective jurisdictions when implemented and interpreted in the courtroom. We reveal and analyse differences in parliamentary intent concerning at what stage a person’s decision-making agency is putatively empowered; judicial development of central concepts; underlying socio-cultural commitments; and outline opportunities for bi-directional learning in mental capacity law across both jurisdictions.

Seeking an anticipatory declaration from the Court of Protection (CoP) to manage a risk of future loss of capacity in pregnant people during labour and delivery appears to be occurring more frequently. This article examines a growing case sample of recent CoP judgments in which anticipatory declarations have been sought and adopts a combined relational and spatial approach to question whether these types of anticipatory declarations empower patient autonomous choice, and to illuminate the complex web of relational, spatial, and temporal factors that hold influence over the way in which mental capacity law operates. Viewing such processes from both a patient and institutional perspective offers useful insights into the law’s normative workings, boundaries, and constraints, and ultimately points to conclusions on the (in)effectiveness of anticipatory declarations as a legal mechanism for dealing with the risk of a patient losing capacity in the future. Moreover, however, taking a broader, spatial view signals the challenges posed by these cases to mental capacity legislation itself. The justifiability of the binary construct of capacity/incapacity has been challenged by some writers in this field, and this article offers further reflection on the integrity of this binary through its discussion of anticipatory orders for pregnant people.

Book review: Reimagining the Court of Protection: Access to Justice in Mental Capacity Law Reimagining the Court of Protection: Access to Justice in Mental Capacity Law, LindseyJaime (Cambridge: Cambridge University Press, 2022), 227 pp., £29.99, ISBN: 9781108993203.

The CRPD and mental health law reform in Scotland

Throughout human history, all new technology has been met with surprise, anxiety, panic, and – eventually – prudent adoption of certain aspects of specific technological advances. This pattern is evident in the histories of most technologies, ranging from steam power in the nineteenth century, to television in the twentieth century, and – now – ‘artificial intelligence’ (AI) in the twenty-first century. Each generation believes that the technological advances of its era are quantitatively and qualitatively different to those of previous generations, but the underlying phenomenon is the same: the shock of the new, followed by more gradual adjustment to (and of) new technology. These concerns are apparent today in relation to AI, which reflects interesting but incremental advances on existing technologies, rather than stand-alone developments. The usual concerns with all technologies (e.g., that they will replace certain aspects of human function) are, perhaps, more concerning in fields such as mental capacity law, which often applies to people with impaired decision-making capacity who might be especially vulnerable to technologies which appear capable of encroaching disproportionately on decision-making or other areas of core human function. This paper approaches this topic from an historical standpoint, noting both previous technological panics in the past and the possibilities offered by AI today, provided it is approached in a proportionate, prudent, and person-centered way, underpinned by appropriate ethical guidance and active ethical awareness in clinical and legal practice.

The island of Ireland is partitioned into Northern Ireland and the Republic of Ireland. In both jurisdictions, there have been important developments in mental health and mental capacity law, and associated policies and services. This includes an emphasis on developing more comprehensive approaches to collecting data on outcomes and so there is an opportunity to align these processes to enable comparison and shared learning across the border. This article explores: legal and policy developments; international approaches to mental health outcomes; and the type of data that would be helpful to collect to better understand the use of mental health and mental capacity laws. It is argued that an inclusive strategy to developing a comprehensive, integrated and aligned approach to collecting and analysing data would benefit citizens, policy makers and professionals.

Journal Article Jaime Lindsey, Reimagining the Court of Protection: Access to Justice in Mental Capacity Law Get access Jaime Lindsey, Reimagining the Court of Protection: Access to Justice in Mental Capacity Law, Cambridge University Press, 2023, hardback, 244 pp, £85.00, ISBN: 978-1-108-83442-1 Jordan Briggs Jordan Briggs University of Oxford, UK E-mail: jordan_briggs@outlook.com Search for other works by this author on: Oxford Academic PubMed Google Scholar Medical Law Review, fwad035, https://doi.org/10.1093/medlaw/fwad035 Published: 10 October 2023

Beverley Clough, The Spaces of Mental Capacity Law: Moving Beyond Binaries, Routledge, 2021, hb, 208 pp, £130.00

Book Review: The Spaces of Mental Capacity Law: Moving beyond binaries, by Beverley Clough (Routledge, 2021)

Book review: Exploring the Spaces of Mental Capacity Law In Conversation with the Author: The Space of Mental Capacity Law: Moving Beyond Binaries