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Laws 2015, 4(2), 125-138; doi:10.3390/laws4020125

Decision-Making, Legal Capacity and Neuroscience: Implications for Mental Health Laws

Melbourne Social Equity Institute, University of Melbourne, 201 Grattan Street, Parkville, Victoria 3010, Australia
Academic Editor: Kelly Purser
Received: 31 March 2015 / Accepted: 20 April 2015 / Published: 27 April 2015
View Full-Text   |   Download PDF [195 KB, uploaded 27 April 2015]

Abstract

Neuroscientific endeavours to uncover the causes of severe mental impairments may be viewed as supporting arguments for capacity-based mental health laws that enable compulsory detention and treatment. This article explores the tensions between clinical, human rights and legal concepts of “capacity”. It is argued that capacity-based mental health laws, rather than providing a progressive approach to law reform, may simply reinforce presumptions that those with mental impairments completely lack decision-making capacity and thereby should not be afforded legal capacity. A better approach may be to shift the current focus on notions of capacity to socio-economic obligations under the Convention on the Rights of Persons with Disabilities. View Full-Text
Keywords: legal capacity; mental capacity; decision-making; mental health laws; neuroscience legal capacity; mental capacity; decision-making; mental health laws; neuroscience
This is an open access article distributed under the Creative Commons Attribution License which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited. (CC BY 4.0).

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McSherry, B. Decision-Making, Legal Capacity and Neuroscience: Implications for Mental Health Laws. Laws 2015, 4, 125-138.

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