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Introduction
The law, at least in England and Wales, divides adults[1] into those who have the mental capacity to make decisions and those who do not. This distinction is crucial, and underpins health and social care practice, not least as it answers the questions: can I rely on this person’s consent to an action that I want to carry out? Can I override this person’s refusal to consent to an action that I want to carry out? Or can I proceed even though the person does not appear to be able to give me consent? In theory, applying the law in England and Wales the Mental Capacity Act 2005 (“MCA 2005”), will always tell us the answers to these questions, and gives health and social care practitioners the sound basis that they need to carry out their tasks.
The reality, however, is much messier, because people are messier. Indeed, the Committee on the Rights of Persons with Disabilities has said starkly that:
Mental capacity is not, as is commonly presented, an objective, scientific and naturally occurring phenomenon. Mental capacity is contingent on social and political contexts, as are the disciplines, professions and practices which play a dominant role in assessing mental capacity[2].
This paper, written by a practising barrister specialising in the MCA 2005, surveys law and practice in England and Wales with a view to sketching out a preliminary answer as to whether it can be said there is, in fact, any legally defensible concept of mental capacity. It is, of necessity, only a partial and impressionistic tour d’horizon: an editorial more than an in-depth analysis, but it does serve as a reflection on the best part of a decade spent grappling with the MCA 2005 in and out of the court room, a decade increasingly informed by and challenged by the requirements of the Convention on the Rights of Persons with Disabilities (“CRPD”).
The current law in England and Wales
A person who lacks capacity in relation to a matter is defined under Section 2(1) MCA 2005 as being a person who at the material time:
[…] is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the...