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Mental Capacity - why look for a paradigm shift?

Research output: Contribution to journalArticlepeer-review

Original languageEnglish
JournalMedical Law Review
Accepted/In press29 Nov 2022

King's Authors

Abstract

Over the last 10 years there has been a sustained challenge to the concept of mental capacity. That challenge is not just to the way in which it is assessed, or legal responses where the individual in question lacks that capacity but to the very legitimacy of the concept. That challenge has been spearheaded by the Committee on the Rights of Persons with Disabilities, the treaty body for the UN Convention on the Rights of Persons with Disabilities and is repeatedly asserted as having produced a paradigm shift. This paper addresses why the Committee’s interpretation has had such limited traction and whether it should have traction. It also analyses whether, in fact, the Committee has more recently subtly but importantly shifted its position, implicitly recognising that the paradigm in relation to capacity has not shifted in the way some have asserted. The paper then develops an argument that the true goal should be to achieve a satisfactory determination of whether a person has or lacks mental capacity to make a relevant decision or take a relevant decision, as context for multi-disciplinary, research-informed guidelines designed as a contribution to securing that goal. Whilst focused on the approach to mental capacity in England & Wales enshrined within the Mental Capacity Act 2005, the arguments advanced within the paper are of relevance to the wider debates about the legitimacy of the concept of mental capacity, and to those concerned with securing the rights of those with impairments.

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