Why should we be able to make our own decisions? Discussing 'Legal Capacity, Disability and Human Rights'

Introduction 

What does legal capacity mean? How does law accommodate different values—autonomy, paternalism, dignity, and so on—in deciding when someone should be able to make their own decisions? Why should we be able to decide at all? These were some of the questions raised by speakers at the launch of Legal Capacity, Disability and Human Rights (edited by Michael Bach and Nicolás Espejo-Yaksic, Intersentia 2023), organised by Shazia Choudhry and hosted at the Wadham Law and Justice Hub on 13 November. Academics and researchers from the Family and Medical Law Research Group were invited to comment on the edited volume as well as present their own research in the relevant area. As an attendee and speaker (and, in the interest of full disclosure, a co-author of one of the book chapters) at the launch, I hope to capture some of the fascinating points made here.

Theorising legal (in)capacity across jurisdictions 

The event began with Jonathan Herring, Heloise Robinson, and Nicolás Espejo-Yaksic considering the main themes explored in the work. Jonathan opened the discussion with an evocative quote from a previous paper: 

It is a terrible thing to be assessed as lacking capacity when you do not—to have others make decisions on your behalf and set aside your own wishes based on what they think is in your best interests. […] 

It is a terrible thing to be said to have capacity when you do not—to be left to cause yourself and those you love great harm on the basis that you know what you are doing and you are making your own choices, when in fact your decisions are not really yours. 

This passage sums up, quite perfectly, the dilemma faced by legal systems in finding the right balance between capturing people’s authentic wishes and protecting them from harm. Using the English cases PC v York and Mrs and Mr A, Jonathan demonstrated how current legal responses are often unable to fully address human realities. When making decisions in the context of relationships, for example, how many can truly say that they are always rational, always able to take into account every piece of relevant information? How can the law distinguish between a decision made because of a mental ‘impairment’ and a decision made because one is blinded by love? Jonathan commented that the edited volume, by highlighting these difficulties and how they are addressed in different jurisdictions, presents fresh, nuanced insights and manages to avoid the often polarised debates surrounding this topic. 

Heloise began her comment by pointing out that issues of legal incapacity and disability raise fundamental questions about autonomy, equality, and dignity which really concern everyone. But how should we understand the relationship between a person’s ability to make decisions for themselves with these values? How does being able to make decisions facilitate such goals, and what happens when they conflict with one another? The edited volume, she noted, demonstrates the need to take a contextualised approach to these questions, as well as the limits of law and human rights in answering them. 

Nicolás, the co-editor of the volume, agreed that the question of legal capacity goes to the core of personhood, autonomy, and equality. Part of the motivation behind the project was to bring disability rights, often marginalised in rights discourses, to the very fore. Moreover, Nicolás emphasised the need for disability rights to go beyond simply facilitating autonomy and equal treatment. As the relational autonomy model suggests, recognising people’s vulnerability and their need for support and care from others may be equally, if not more, important. 

The discussion aptly captured the key themes and queries which have motivated disability law scholarship in recent years. The Big Questions remain open to new interpretations and solutions. What is the best way forward for capacity assessment frameworks across the world, particularly in light of the paradigm shift from a medical to social model of disability, as embodied in the UN Convention on the Rights of Persons with Disabilities (UNCRPD)? Is supported decision-making the ultimate cure-all? Perhaps, as Jonathan, in his usual playful manner, seriously suggested (and with whom Nicolás heartily disagreed), the law should treat us all as if we have no capacity to decide anything for ourselves.  

Researching mental capacity law: future directions 

Following a quick coffee break, I sat down with Hillary Chua, a fellow DPhil researcher in the group, for a chat about our respective research on mental capacity and disability law in Hong Kong and in Singapore. 

In response to the discussion in the first part, Hillary and I spoke about the state of mental capacity law in the two jurisdictions and outstanding issues which we have addressed in previous research, including access to justice for psychiatrised people in Hong Kong and the sterilisation of those with intellectual disabilities in Singapore. We found interesting parallels between the two socio-legal contexts—common roots in English law, the theoretical applicability (but ultimate unenforceability) of the UNCRPD, and a focus on community- or family-centred care. While I have moved from considering mental disorder in the civil to the criminal context in my DPhil project, Hillary will continue look at how mental capacity law in Singapore enables people to make their own decisions. This is an exciting field of research indeed, and we are eager to continue these conversations as our work progresses.