Autonomy, capacity and vulnerable adults: filling the gaps in the Mental Capacity Act

Abstract

This paper explores the distinction between being autonomous and having capacity for the purposes of the Mental Capacity Act. These include where a person misuses affective attitudes in making the decision; where a person's decision is not authentic to their values; and where the Mental Capacity Act prevents use of the context or outcome of the decision in assessing capacity. These gaps mean that a person can be found to have capacity, even though they are not properly autonomous. This, we argue, justifies the courts’ use of the inherent jurisdiction to protect vulnerable adults who, while having capacity are not able to act autonomously.

Between the Reasonable and the Particular: Deflating Autonomy in the Legal Regulation of Informed Consent to Medical Treatment

“…Typically, the evolution of law and practice in seen as defensible only when it shifts along this spectrum, endorsing consent practices that equate with a more patient-centred and autonomyfocused approach. One point that we have endeavoured to clarify in this paper is that, as with other areas of health care practice and research, 1 patient-centrism does not, and need not, track the value of individual patient autonomy within the doctor-patient relationship, in general, and with regards to the framing and articulation of norms of information disclosure, in particular [16].…”

Compassion, ethics of care and legal rights

“…Indeed emotions used to be regarded as in competition with reason. People who were 'emotional' were of doubtful capacity (for example, Re MB [1997] EWCA 1361) and legal reasoning had to be based on cold rationality (Herring and Wall, 2015). There are a number of problems with such an approach.…”

The vulnerable adult experiment: Situating vulnerability in adult safeguarding law and policy

“…Such a manoeuvre was largely welcomed by commentators who had noted that autonomy had been inadequately protected by the Mental Capacity Act 2005 (e.g. Herring and Wall, 2015). It was not until a year later, however, that Justice Munby sought to elaborate the foundations of the jurisdiction more clearly when he concluded that he had authority to use the High Court's jurisdiction in order to protect a profoundly hearing-impaired young woman with a learning disability (Re SA [2005]).…”