Is Mental Capacity Law Law?

John Coggon is Professor of Law in the Centre for Health, Law, and Society at the University of Bristol Law School. He is also an Honorary Member of the UK Faculty of Public Health (FPH). He sits on the ethics committees of the British Medical Journal and FPH, and is a member of the Nuffield Council on Bioethics. John’s research focuses primarily on questions in public and global health ethics and law and mental capacity law, examined in particular through methods of moral and political analysis. His recent works include the paper, co-authored with Dr Camillia Kong, ‘From Best Interests to Better Interests? Values, Unwisdom and Objectivity in Mental Capacity Law,’ Cambridge Law Journal (2021) 80:2, 245-273. This is one of the outputs of the AHRC-funded Judging Values and Participation in Mental Capacity Law project (PI, Camillia Kong), on which John was a co-investigator, and from which research the current paper also draws.

Abstract

The Mental Capacity Act 2005 provides the statutory framework for legal regulation across the broad reach of personal decision-making for adults in England and Wales. It is drafted with ideals of personal empowerment at its core: it aims to promote people’s equal decision-making capacity; and where it provides that a person lacks such capacity, it maintains that the person should be at the centre of the decision, including through their participation and the incorporation of their values in decision-making processes that aim to identify and implement the person’s best interests. In order to realise its goals, the Act operates through a framework of principles. This is to allow nuance through which it may then be possible to secure the centricity of the person at the heart of the decision: a best interests determination is specific to the particular practical decision, for the particular person, at the particular time.

However, there is an in-built principled tension within the statute, which at once aims to promote a value-neutral, skeletal framework for decision-makers, whilst also importing value commitments; both through values-commitments inherent to the Act and—crucially—by the creation of vacuums that must be filled by values that are neither introduced by law nor from the person for and about whom a decision is being made. This invites critical questions about assumptions that underpin the normative validity of the statute: both in its claims to assuring legal authority, and to the essence of judicial decision-making under the Act. These points are well explored from a judge’s perspective by Sir Mark Hedley in his book The Modern Judge.

In this paper, I advance analysis that builds from Sir Mark’s reflections, especially by reference to the rule of law and the exercise of state power. The peculiar scope and contours of judicial discretion under the Act, including through the non-operation of precedent, the (intended) incompleteness and vagueness of the best interests standard, and the paired commitments of providing legal protection and allowing for radical variation and nuance, lead to critical exploration of the strange but basic question: is mental capacity law law?