Special Issue "Competency and Capacity: Issues Affecting Health Law, Policy and Society"

A special issue of Laws (ISSN 2075-471X).

Deadline for manuscript submissions: closed (30 March 2015).

Special Issue Editors

Prof. Lindy Willmott
Website
Guest Editor
Queensland University of Technology, Australian Centre for Health Law Research, Gardens Point, 2 George St., Brisbane, QLD 4000, Australia
Interests: advance care planning; advance directives; end of life decision-making; futile medical treatment; guardianship law; medical law
Dr. Kelly Purser
Website
Guest Editor
Queensland University of Technology, Australian Centre for Health Law Research, Gardens Point, 2 George St., Brisbane, QLD 4000, Australia
Interests: capacity; wills; powers of attorney; advance health directives; elder law; estate planning
Dr. Shih-Ning Then
Website
Guest Editor
Queensland University of Technology, Australian Centre for Health Law Research, Gardens Point, 2 George St., Brisbane, QLD 4000, Australia
Interests: Vulnerable patients in health care; guardianship; regulation of health care

Special Issue Information

Dear Colleagues,

Competency and capacity have often been used as threshold concepts to allow, or deny, persons the right to make decisions. This has had particular relevance in the area of health, where medical professionals have often been tasked with assessing an individual’s decision-making ability. However, international developments—such as the United Nations Convention on the Rights of Persons with Disabilities—have provided an impetus for scholars, policy-makers and those in the health and legal communities to redefine thinking around the notion of competency and capacity, how it influences decision-making, and how it is assessed.

This Special Issue seeks to provide a platform to discuss the emerging legal and policy issues in health law, and beyond, relating to the concepts of competency and capacity. It seeks to bring together a range of global perspectives on this issue, engaging with both theoretical and practical issues brought about in this intersection of law, medicine and society.

The articles in this edition are not limited to a single country or jurisdiction, and submissions which adopt a multidisciplinary approach are welcome. This Special Issue seeks to be a critical reference point for academics and the wider community interested in this area of law.

Dr. Kelly Purser
Dr. Shih-Ning Then
Professor Lindy Willmott
Guest Editors

References:

Carney, T. “Clarifying, Operationalising and Evaluating Supported Decision Making Models.” Research and Practice in Intellectual and Developmental Disabilities 1 (2014): 46.

Richardson, Genevra. “Mental Disabilities and the Law from Substitute to Supported Decision-Making.” Current Legal Problems 65 (2012): 333–54.

Kapp, Marshall B. “Assessing Assessments of Decision-Making Capacity: A Few Legal Queries and Commentary on “Assessment of Decision-Making Capacity in Older Adults.” Journals of Gerontology, Series B: Psychological Sciences and Social Sciences 62 (2007): 12–13.

Buchanan, Allen E., and Dan W. Brock. Deciding for Others: The Ethics of Surrogate Decision Making. Cambridge: Cambridge University Press, 1989.

McSherry, Bernadette M. “Legal Capacity under the Convention on the Rights of Persons with Disabilities.” Journal of Law and Medicine 20 (2012): 22–27.

Manuscript Submission Information

Manuscripts should be submitted online at www.mdpi.com by registering and logging in to this website. Once you are registered, click here to go to the submission form. Manuscripts can be submitted until the deadline. All papers will be peer-reviewed. Accepted papers will be published continuously in the journal (as soon as accepted) and will be listed together on the special issue website. Research articles, review articles as well as short communications are invited. For planned papers, a title and short abstract (about 100 words) can be sent to the Editorial Office for announcement on this website.

Submitted manuscripts should not have been published previously, nor be under consideration for publication elsewhere (except conference proceedings papers). All manuscripts are thoroughly refereed through a double-blind peer-review process. A guide for authors and other relevant information for submission of manuscripts is available on the Instructions for Authors page. Laws is an international peer-reviewed open access quarterly journal published by MDPI.

Please visit the Instructions for Authors page before submitting a manuscript. Submitted papers should be well formatted and use good English. Authors may use MDPI's English editing service prior to publication or during author revisions.

Keywords

  • capacity
  • competence
  • guardianship
  • mental health
  • substitute and supported decision-making
  • consent
  • end of life decision-making
  • adolescent decision-making
  • future planning

Published Papers (7 papers)

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Research

Open AccessArticle
The Exercise of Legal Capacity, Supported Decision-Making and Scotland’s Mental Health and Incapacity Legislation: Working with CRPD Challenges
Laws 2015, 4(2), 296-313; https://doi.org/10.3390/laws4020296 - 18 Jun 2015
Cited by 7
Abstract
Article 12 of the UN Convention on the Rights of Persons with Disabilities, particularly as interpreted in the Committee on the Rights of Persons with Disabilities General Comment No. 1, presents a significant challenge to all jurisdictions that equate interventions permitted under their [...] Read more.
Article 12 of the UN Convention on the Rights of Persons with Disabilities, particularly as interpreted in the Committee on the Rights of Persons with Disabilities General Comment No. 1, presents a significant challenge to all jurisdictions that equate interventions permitted under their mental health and incapacity laws with mental capacity. This is most notable in terms of the General Comment’s requirement that substitute decision-making regimes must be abolished. Notwithstanding this, it also offers the opportunity to revisit conceptions about the exercise of legal capacity and how this might be better supported and extended through supported decision-making. This article will offer some preliminary observations on this using Scottish mental health and incapacity legislation as an illustration although this may also have relevance to other jurisdictions. Full article
Open AccessArticle
Querying the Call to Introduce Mental Capacity Testing to Mental Health Law: Does the Doctrine of Necessity Provide an Alternative?
Laws 2015, 4(2), 245-271; https://doi.org/10.3390/laws4020245 - 08 Jun 2015
Cited by 9
Abstract
Trends in international human rights law have challenged States globally to rethink involuntary mental health interventions from a non-discrimination perspective. The United Nations Convention on the Rights of Persons with Disabilities (CRPD) in particular prohibits laws that discriminate on the basis of disability. [...] Read more.
Trends in international human rights law have challenged States globally to rethink involuntary mental health interventions from a non-discrimination perspective. The United Nations Convention on the Rights of Persons with Disabilities (CRPD) in particular prohibits laws that discriminate on the basis of disability. However, a key criterion for compulsory mental health treatment under typical mental health legislation is a psychiatric diagnosis (in conjunction with risk of harm and other criteria). Hence, for people with mental health disabilities, rights to liberty and consent in healthcare are held to a different standard compared to other citizens. A prominent law reform option being explored by some governments and commentators for achieving non-discrimination is to replace the diagnostic criterion for triggering involuntary intervention with an assessment of mental capacity. After all, every citizen is subject to restrictions on autonomy where they are deemed to lack mental capacity, such as where concussion necessitates emergency service. However, the use of mental capacity “testing” is seen by diverse commentators as wanting in key respects. A prominent criticism comes from the United Nations Committee on the Rights of Persons with Disabilities, which considers mental capacity assessments a form of disability-based discrimination. This article queries the call to replace the diagnostic criterion in mental health law with an assessment of mental capacity in the light of jurisprudence on equality and non-discrimination in international human rights law. Instead, we examine the doctrine of necessity as an area of law, which might help identify specific thresholds for overriding autonomy in emergency circumstances that can be codified in a non-discriminatory way. We also consider the need for deliberative law reform processes to identify such measures, and we suggest interim, short-term measures for creating a “supported decision-making regime” in the mental health context. The article focuses in particular on the Australian context of mental health law reform, though the analysis can be generalised to international trends in mental health law. Full article
Open AccessArticle
Conceptual and Ethical Problems in the Mental Capacity Act 2005: An Interrogation of the Assessment Process
Laws 2015, 4(2), 229-244; https://doi.org/10.3390/laws4020229 - 05 Jun 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 [...] Read more.
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. Full article
Open AccessArticle
Should Supported Decision-Making Replace Substituted Decision-Making? The Convention on the Rights of Persons with Disabilities and Coercive Treatment under Queensland’s Mental Health Act 2000
Laws 2015, 4(2), 173-200; https://doi.org/10.3390/laws4020173 - 25 May 2015
Cited by 3
Abstract
In 2013, and again in 2014, the UN Committee on the Rights of Persons with Disabilities (CRPD) has recommended that Australia abolish its existing mental health laws which authorise involuntary treatment and detention, and replace them with a regime of supported decision-making. The [...] Read more.
In 2013, and again in 2014, the UN Committee on the Rights of Persons with Disabilities (CRPD) has recommended that Australia abolish its existing mental health laws which authorise involuntary treatment and detention, and replace them with a regime of supported decision-making. The Australian Law Reform Commission has also recommended the introduction of supported decision-making to replace mental health and guardianship laws. This paper critically evaluates the concepts of autonomy and discrimination and the social model of disability which provide the theoretical underpinning of the CRPD. Focussing on coercive treatment of adults with severe mental illness under Queensland’s Mental Health Act 2000, it then evaluates the advantages and disadvantages of supported decision-making, and concludes that the proposed abolition of involuntary treatment laws is not justified. Full article
Open AccessArticle
Evaluating Decision Making Capacity in Older Individuals: Does the Law Give a Clue?
Laws 2015, 4(2), 164-172; https://doi.org/10.3390/laws4020164 - 22 May 2015
Cited by 3
Abstract
Adequate cognitive and emotional capacity is essential to autonomous decision making by adult medical patients. Society often attaches legal consequences to decisional capacity evaluations. Even when the legal system is not formally involved in the competency evaluation of a particular individual, clinical practice [...] Read more.
Adequate cognitive and emotional capacity is essential to autonomous decision making by adult medical patients. Society often attaches legal consequences to decisional capacity evaluations. Even when the legal system is not formally involved in the competency evaluation of a particular individual, clinical practice and ethical conduct occur within and are informed by legal parameters. Using relevant statutory, court rule, and judicial opinion examples from a representative jurisdiction within the United States, this article argues that the law seldom provides much meaningful guidance to health care and human services providers to assist them regarding the content of capacity evaluation. The article concludes by asking how society ought to respond to the paucity of helpful guidance provided by the law in the decisional capacity evaluation context. Full article
Open AccessArticle
Decision-Making, Legal Capacity and Neuroscience: Implications for Mental Health Laws
Laws 2015, 4(2), 125-138; https://doi.org/10.3390/laws4020125 - 27 Apr 2015
Cited by 4
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 [...] Read more.
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. Full article
Open AccessArticle
Supported Decision-Making for People with Cognitive Impairments: An Australian Perspective?
Laws 2015, 4(1), 37-59; https://doi.org/10.3390/laws4010037 - 23 Jan 2015
Cited by 13
Abstract
Honouring the requirement of the Convention on the Rights of Persons with Disabilities to introduce supported decision-making poses many challenges. Not least of those challenges is in writing laws and devising policies which facilitate access to formal and informal supports for large numbers [...] Read more.
Honouring the requirement of the Convention on the Rights of Persons with Disabilities to introduce supported decision-making poses many challenges. Not least of those challenges is in writing laws and devising policies which facilitate access to formal and informal supports for large numbers of citizens requiring assistance with day-to-day issues such as dealing with welfare agencies, managing income security payments, or making health care decisions. Old measures such as representative payee schemes or “nominee” arrangements are not compatible with the CRPD. However, as comparatively routine social security or other government services become increasingly complex to navigate, and as self-managed or personalised budgets better recognise self-agency, any “off the shelf” measures become more difficult to craft and difficult to resource. This paper focuses on recent endeavours of the Australian Law Reform Commission and other local and overseas law reform and policy initiatives to tackle challenges posed both for ordinary citizens and those covered by special programs (such as Australia’s National Disability Insurance Scheme and “disability trusts” in Australia and Canada). Full article
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