Challenges not just to the application, but the very legitimacy, of the concept 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). It is often asserted that this challenge, and the associated challenge to mechanisms to respond to incapacity, have produced a ‘paradigm shift’ (as an admittedly unscientific data point, a search of ‘paradigm shift’ AND ‘Convention on the Rights of Persons with Disabilities’ on Google Scholar produces almost 5,000 results). However, in practice, the challenge has so far made little headway, with courts and legislatures around the world holding to models based on a functional model of mental capacity.
In an article I have co-written in the Medical Law Review (with Dr Nuala Kane, Dr Scott Kim and Dr Gareth Owen) as part of the Mental Health & Justice project, we examine why the challenge to the concept of mental capacity has such limited traction in the legal policy arena. We also examine whether the challenge should have greater traction, identifying four critiques of it. Driven by a desire to move forward, rather than endlessly circle around the campfire of hot but often unilluminating argument, we then identify a subtle, but important (and constructive) shift in the position of the Committee towards capacity.
The paper then develops 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. Finally, we outline at the end what we think the true paradigm shift has been (but I won’t spoil the surprise here).
If you want to hear me talking about the paper, see here.
The Medical Law Review paper accompanies research-based guidance in relation to capacity assessments available here.