Mental Capacity - why look for a paradigm shift?

Research output: Contribution to journalArticlepeer-review

3 Citations (Scopus)

Abstract

Challenges to the legitimacy of mental capacity over the past 10 years have 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 (CRPD). This challenge has been asserted to have produced a 'paradigm shift'. In this article, we examine why that interpretation has had such limited traction in the legal policy arena, and whether it should have traction. We also analyse whether the Committee has subtly but importantly shifted its position. We then develop an argument that the true goal, compatible with the CRPD, is the satisfactory determination of whether a person has or lacks mental capacity to make or take a relevant decision. Our article contextualises multi-disciplinary, research-informed guidelines designed as a contribution to satisfactory determination. While our article is based upon the position in England and Wales, we suggest that our conclusions are of wider application.

Original languageEnglish
Pages (from-to)340-357
Number of pages18
JournalMedical Law Review
Volume31
Issue number3
Early online date13 Jan 2023
DOIs
Publication statusPublished - 25 Aug 2023

Keywords

  • capacity assessment
  • Convention on the Rights of Persons with Disabilities
  • DECISION-MAKING

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