What is it about?
The Select Committee upholds the principles of the Mental Capacity Act but highlights implementation problems. This article argues that one reason for this is its limited remit. Implementation of the Act, and upholding the principles of the UN Convention on the Rights of Persons with Disabilities, is dependant upon a broader commitment to empowerment. This article considers how this might be achieved.
Featured Image
Why is it important?
The article: 1) demonstrates flaws in the doctrinal approach to mental capacity by looking beyond the Mental Capacity Act and linking this to implementation problems 2) demonstrates normative issues inherent in the current focus on individual rather than relational autonomy 3) highlights the importance of (and ways to) resolve these issues by adapting the common law /legislation.
Perspectives
Subsequently to the publication of this article, the Law Commission, Mental Capacity and Deprivation of Liberty, Law Com No 372 (2017) proposed reform of the MCA 2005, in part to address inconsistencies highlighted in this article.
Professor Emma Cave
Durham University
Read the Original
This page is a summary of: Determining Capacity to Make Medical Treatment Decisions: Problems Implementing the Mental Capacity Act 2005, Statute Law Review, November 2014, Oxford University Press (OUP),
DOI: 10.1093/slr/hmu034.
You can read the full text:
Contributors
The following have contributed to this page
