Book review: Supporting Legal Capacity in Socio-Legal Context

Supporting Legal Capacity in Socio-Legal Context (Mary Donnelly, Rosie Harding and Ezgi Taşcıoğlu, eds., Hart, 2022, hardback/eBook, c.£76/61)

The second wave of scholarship about the UN Convention in the Rights of Persons with Disabilities is now firmly with us. Following hard on the heels of a volume edited by Michael Ashley Stein and others on the CRPD in the mental health c0ntext[1] comes another edited volume of equally high quality and (almost) equal jurisdictional reach, thinking about legal capacity more broadly.  Supporting Legal Capacity in Socio-Legal Context, edited by Mary Donnelly, Rosie Harding and Ezgi Taşcıoğlu,[2] is an edited collection stimulated by a workshop convened by the Oñati Institute in July 2019.  As the editors acknowledge, the pandemic (touched upon, albeit only relatively briefly, in some of the chapters) substantially delayed progress towards publication.  In the circumstances, indeed, the editors and contributors are to be congratulated for having persevered against the odds to bring so substantive a work to completion.

The book contains 16 chapters, written by contributors from the UK (importantly, including England & Wales and Scotland – two of the three distinct jurisdictions within one island; Northern Ireland, sadly,[3] does not feature), Canada, Finland, India, Ireland, Spain, Sweden and Turkey.  The contributors (and indeed) editors are, in many ways, a ‘who’s who’ of capacity law scholarship – even if, as the editors rightly acknowledge, there is no explicitly disabled voice amongst the authors.[4]   Crucially, it is a volume which does not seek to impose a homogeneity of stance towards the CRPD upon its contributors, but at the same time (including in the editors’ opening chapter) steering away from the polarising tone of some of the debates which on occasion has characterised the first wave of CRPD scholarship, generating much heat but frequently a frustrating lack of illumination as to what operationalising the right to legal capacity really means.  The volume also fulfils in spades the editors’ hope that it “showcase[s] the contribution of socio-legal methodologies in developing an evidence-base for the enhanced right to legal capacity.”[5]

It is divided into three broad sections: (1) charting the conceptual contours of capacity law; (2) reforming capacity law: making, shaping and interpreting legal frameworks; and (3) supporting legal capacity in everyday life: balancing empowerment and safeguards.  This means that it has something for (almost) everyone, whether you be student, researcher, activist, law-maker, clinician, social worker, philosopher or lawyer, and whether you be a newcomer to these debates or steeped in the arcana of “100% supported decision-making.”

Of particular interest, at least to me, are those chapters which shed light on areas which are insufficiently understood within the Anglosphere.  These include the chapters by Patricia Cuenca Gómez on the reforms to Spanish civil legislation on legal capacity on persons with disabilities and Ezgi Taşcıoğlu on Turkey’s state reporting to the Committee on Persons with Disabilities, both of which (in different ways) illuminate how legal capacity has a very different place within civil law jurisdictions to that which it has in common law jurisdictions. In (very) crude terms, it seems to me that whereas legal capacity is a clearly, and expressly, identified concept within the grounding codes of civil law jurisdictions, identifying the place of legal capacity is a much more piecemeal affair within common law jurisdictions.[6]  Hence (and in equally crude terms) the importance placed by activists upon reforms in civil law jurisdictions which lead to amendments in the relevant code as to the meaning of legal capacity (and when a person can be ‘incapacitated’), and the scepticism of common lawyers that those amendments give the full picture of what happens in situations where a person is temporarily or permanently cognitively impaired to the point that they cannot make (or communicate) a decision.

Equally interesting, for a different reason, is the chapter by Titti Mattson on decision-making in relation to social services for persons with dementia in Sweden, which explores some of the complexities of a system placing a high premium on supporting individuals to remain at home and upon interventions (at least in social services) being based solely upon consent – both ‘big ticket’ items from a CRPD perspective. The chapter by Soumitra Pathare and Arjun Kapoor also provides an important (and in this volume[7] isolated) example of attempts to bring about CRPD compliance within a low-resource country setting: in this case, India, through the prism of the Mental Healthcare Act 2017.

It would also be wrong to leave this review without highlighting the chapter by Eilionóir Flynn, ‘The (Contested) Role of the Academy in Activist Movements for Legal Capacity Reform: A Personal Reflection.’  In some ways an unusual piece within an academic collection, given its very personal tone, it makes for particularly interesting reading.  The former Chair of the Committee on the Rights of Persons with Disabilities, Theresa Degener, has described the Committee as having been “perhaps naïve” to devote its first General Comment – and hence, by implication, a very substantial amount of its small ‘p’ political capital – to the issue of legal capacity.[8]  That naivete might also be seen in the way in which General Comment 1 proceeded on the basis that it was setting out an approach to legal capacity which simply spoke for itself, akin to a prophecy[9] revealing self-evident truths.  In some ways, Flynn’s chapter – dealing with the process of the passage of the Assisted Decision-Making (Capacity) Act 2015 in Ireland – can be seen as a report of the point at which the prophetic approach contained in General Comment 1 had to be tested by law-makers seeking to reduce the high level principles of the CRPD to domestic legal provisions.  Flynn does not hide her disappointment at the end result in Ireland, but the chapter– and the book as a whole – represents necessary reading for those taking stock of the first wave of scholarship and activism, and working how best to move forward to enhancing the right to the enjoyment of legal capacity on an equal basis.

[Full disclosure, I provided comments on a draft of the chapter by Camillia Kong on the significance of strong evaluation and narrativity in supporting capacity.  I was also provided with an inspection copy of this book by the publishers.  I am always happy to review books in the field of mental capacity and mental health law (broadly defined).]

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[1] Stein, M. A., Mahomed, F., Patel, V., & Sunkel, C. (Eds.). (2021). Mental health, legal capacity, and human rights. Cambridge University Press, reviewed here.

[2] In line with the approach taken in the volume, I do not use their titles here, or those of the contributors.  No disrespect is intended thereby.

[3] “Sadly,” because of the experiment that Northern Ireland is embarking upon with the enactment – but not yet full implementation of the Mental Capacity Act (Northern Ireland) 2016, fusing mental capacity and mental health legislation.

[4] The volume edited by Stein et al does feature “service user” perspectives (to use the term adopted by the editors of that volume).  Without wanting to make too much of this, reflecting as it does, no doubt, different editorial strategies, priorities and challenges, it is nonetheless a noteworthy difference when the two volumes are placed side by side.  For those wanting (in effect) to hear the voices of those whose legal capacity who may be in issue outside the ‘conventional’ mental health field, I could not do better than recommend the work of Eilionóir Flynn, one of the contributors to this volume, in particular the Voices Project, and the edited volume to which it gave rise: Flynn, E., Arstein-Kerslake, A., De Bhailís, C., & Serra, M. L. (Eds.). (2018). Global perspectives on legal capacity reform: Our voices, our stories. Routledge.

[5] Page 3.

[6] An example of this, indirectly, can be found in the fascinating table produced by Rosie Harding in her chapter on Supporting Legal Capacity of what she has identified as 16 different supported and substituted decision-making frameworks in English capacity law.  And that list only addresses statutory frameworks, to which it would be necessary to add all the different ways in which the common law addresses the consequences of cognitive impairments.

[7] The Stein et al work achieves a greater – if still not universal – jurisdictional spread.

[8] Degener T. Editor’s foreword. International Journal of Law in Context. 2017 Mar;13(1):1-5, an observation also noted by Mary Donnelly in this work (page 20).

[9] A word I use advisedly, drawing upon the work of James Gustafson, to which my attention was drawn by Scott Kim, a collaborator of mine over many years, including on the Mental Health & Justice project.  Whilst Gustafson’s work has nothing directly to do with the CRPD, his analysis of different types of moral discourse is extraordinarily helpful for those seeking to understand why the discussions between the proponents of the ‘hard-line’ or ‘radical’ interpretation of legal capacity within the CRPD and those operating within legal, clinical and policy frameworks as they stand so often appear to be ones where those involved are talking different languages: they are.  See, in particular, Gustafson, J. M. (1988). Varieties of moral discourse: prophetic, narrative, ethical, and policy. The Stob Lectures.   Interestingly, Flynn uses the religious language of conversion in her chapter, noting that she was “[i]nitially highly sceptical about whether such a ‘radical’ notion [as that contained in Article 12 CRPD] was possible to achieve.   However, my conversion, since it occurred, has been complete, proving that there really is no zealot like a convert when it comes to Article 12” (page 133).