Decision-Making, Legal Capacity and Neuroscience: Implications for Mental Health Laws
2. Legal Capacity and Decision-Making
2.1. Legal Capacity and the Convention on the Rights of Persons with Disabilities
2.2. Mental Capacity and Decision-Making
- To understand the information relevant to the decision,
- To retain that information,
- To use or weigh that information as part of the process of making the decision, or
- To communicate his decision (whether by talking, using sign language or any other means).
For the purposes of this Act, an adult is taken to have the capacity to make a decision about his or her own assessment or treatment (decision-making capacity) unless it is established, on the balance of probabilities, that:(a) he or she is unable to make the decision because of an impairment of, or disturbance in, the functioning of the mind or brain; and(b) he or she is unable to:
- understand information relevant to the decision; or
- retain information relevant to the decision; or
- use or weigh information relevant to the decision; or
- communicate the decision (whether by speech, gesture or other means).
2.3. The Link between Legal and Mental Capacity
For the law, mental capacity is an essential ingredient of individual autonomy and is employed to define the line between legally effective and legally ineffective decisions. Those with mental capacity will have the legal capacity to act: their decisions or choices will be respected. In contrast, those who lack mental capacity will also lack legal capacity: their decisions and choices will not be respected and decisions will be made by others on their behalf.
the concepts of mental and legal capacity have been conflated so that where an individual is thought to have impaired decision-making skills, often because of a cognitive or psychosocial disability, her legal capacity to make a particular decision is removed… Article 12 does not permit this discriminatory denial of legal capacity….(, para. 13)
3. Neuroscience and the Organic Disease Model of Mental Impairments
due to pathological processes in specific parts or systems of the brain. Both the historical and current advocates of this model stress the affinity of psychiatry to neurology and typically view psychiatry as “applied brain science”.(, p. 560)
‘biogenetic explanations’ is a broadly defined term which encompasses different causal explanations like ‘chemical imbalance of the brain’, ‘brain disease’ or ‘heredity’….(, p. 224)
4. Criticisms of Neuroscience and the Mental Capacity Approach
[T]he mental equilibrium of the female sex is not as stable as the mental equilibrium of the male sex. The argument has very strong scientific backing….
[The CRPD] sees incapacity as socially constructed, insists on the full legal capacity of every person with [disabilities], and does away with substituted decision-making in favor of society’s obligation to provide appropriate supports to permit everyone to make his or her own decisions. Like every emerging paradigm, this challenges our perceptions and our understanding of when, how, and even if the state may intervene in a person’s life, and it has the potential to be deeply unsettling. And, unsurprisingly, it takes time…This new conceptualization based on international human rights may initially appear hopelessly utopian, or dangerously naive. Why? Because it is a new way of thinking, a radically different view, a reorientation rather than an incremental change. [Emphasis in original].
5. Moving Beyond Capacity Debates
If appropriate services and supports are provided, the argument goes, compulsion will be no more necessary for people with mental disabilities than for anyone else. There is much to recommend this view in many circumstances, including those related to psychiatric and related detention. Thus, in much of Europe, provision of proper community housing and community support would provide an option likely to be preferred by many people with mental disabilities. If services are provided that people want, it will not be necessary to force them to use them. For a large number of people in psychiatric and related institutions this is almost certainly a convincing argument. And, if the state refuses to offer services that people do want to use, it is ethically dubious to force them to use services they do not want to use.
Conflicts of Interest
References and Notes
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McSherry, B. Decision-Making, Legal Capacity and Neuroscience: Implications for Mental Health Laws. Laws 2015, 4, 125-138. https://doi.org/10.3390/laws4020125
McSherry B. Decision-Making, Legal Capacity and Neuroscience: Implications for Mental Health Laws. Laws. 2015; 4(2):125-138. https://doi.org/10.3390/laws4020125Chicago/Turabian Style
McSherry, Bernadette. 2015. "Decision-Making, Legal Capacity and Neuroscience: Implications for Mental Health Laws" Laws 4, no. 2: 125-138. https://doi.org/10.3390/laws4020125