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Laws 2015, 4(2), 229-244; doi:10.3390/laws4020229

Conceptual and Ethical Problems in the Mental Capacity Act 2005: An Interrogation of the Assessment Process

1
School of Law, The University of Manchester, Oxford Road, Manchester M13 9PL, UK
2
Centre for Human Development, St Patrick's College, Dublin City University, Drumcondra, Dublin 9, Ireland 
Academic Editors: Kelly Purser and Shih-Ning Then
Received: 22 March 2015 / Revised: 25 May 2015 / Accepted: 2 June 2015 / Published: 5 June 2015
View Full-Text   |   Download PDF [198 KB, uploaded 5 June 2015]

Abstract

Central to the Mental Capacity Act 2005 (MCA) is the claim that a conferral of incapacity may not be based on the wisdom of a decision alone. This paper problematizes this position. Values-based medicine is drawn on to explore the process of capacity assessment, highlighting the presence of preconceptions throughout assessment. Two cases before the Court of Protection are examined to bring into focus the complexity of conducting assessment without reference to wisdom. The paper proposes that every stage in the assessment of capacity is undertaken with reference to preconceptions and that an acknowledgement of these, along with transparency about when they are to be employed, would allow for greater clarity about what the MCA demands of practitioners. View Full-Text
Keywords: capacity assessment; Mental Capacity Act 2005; values-based medicine; Anorexia Nervosa; preconceptions capacity assessment; Mental Capacity Act 2005; values-based medicine; Anorexia Nervosa; preconceptions
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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Gibson, D. Conceptual and Ethical Problems in the Mental Capacity Act 2005: An Interrogation of the Assessment Process. Laws 2015, 4, 229-244.

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