No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 03 April 2018
This paper draws upon the civic republican tradition to offer new conceptual resources for the normative assessment of mental capacity law. The republican conception of liberty as non-domination is used to identify ways in which such laws generate arbitrary power that can underpin relationships of servility and insecurity. It also shows how non-domination provides a basis for critiquing legal tests of decision making that rely upon ‘diagnostic’ rather than ‘functional’ criteria. In response, two main civic republican strategies are recommended for securing freedom in the context of the legal regulation of psychological disability: self-authorisation techniques and participatory shaping of power. The result is a series of proposals for the reform of decisional capacity law, including a transition towards purely functional assessment of decisional capacity, surer legal footing for advanced care planning, and greater control over the design and administration of decision making capacity laws by those with psychological disabilities.
I would like to thank Lucy Series, Wayne Martin, and two anonymous reviewers for their constructive comments on earlier versions of this paper. Department of Humanities, University of Roehampton, London, United Kingdom, SW15 5PU.
1 See Herring, J and Wall, J ‘Autonomy, capacity and vulnerable adults: filling the gaps in the Mental Capacity Act 2005’ (2015) 35 LS 698Google Scholar.
2 See Dhanda, A ‘Legal capacity in the Disability Rights Convention: stranglehold of the past or lodestar for the future?’ (2006) 34 Syracuse J Int'l L & Com. 460Google Scholar; Quinn, G ‘Legal capacity law reform: the revolution of the UN Convention on the Rights of Persons with Disability’ in Centre for Disability Law and Policy, Submission on Legal Capacity to the Oireachtas Committee on Justice, Defence & Equality (Galway: NUI Galway, 2011) p 41Google Scholar.
3 UN General Assembly, Convention on the Rights of Persons with Disabilities, 13 December 2006, Art 12.
4 For an introduction to civic republicanism, see Pettit, P Republicanism: A Theory of Freedom and Government (Oxford: Clarendon Press, 1997)Google Scholar; Skinner, Q Liberty Before Liberalism (Cambridge: Cambridge University Press, 1998)Google Scholar; Honohan, I Civic Republicanism (London: Routledge, 2002)Google Scholar. For relevant work on civic republicanism and health, disability or legal capacity, see L Series The Mental Capacity Act 2005 and the Institutional Domination of People with Learning Disabilities (Doctoral thesis) (Exeter: University of Exeter, 2013) ch 2; Wispelaere, J De and Casassas, D ‘A life of one's own: republican freedom and disability’ (2014) 29 Disability & Society 402CrossRefGoogle Scholar; O'Shea, T ‘Disability and domination: lessons from republican political philosophy’ (2018) 35 Journal of Applied Philosophy 133CrossRefGoogle Scholar; O'Shea, T, ‘Civic republican medical ethics’ (2017) 43 Journal of Medical Ethics 56CrossRefGoogle ScholarPubMed; Arstein-Kerslake, A and Flynn, E ‘The right to legal agency: domination, disability, and the protections of Article 12 of the Convention on the Rights of Persons with Disabilities’ (2017) 13 Int JLC 22Google Scholar; T O'Shea ‘Civic republican disability justice’ in A Cureton and D Wasserman (eds) Oxford Handbook of Philosophy and Disability (Oxford: Oxford University Press, forthcoming). For a non-republican approach that nevertheless touches on some of the problems outlined here, see Dunn, M, Clare, I and Holland, A ‘To empower or to protect? Constructing the “vulnerable adult” in English law and public policy’ (2008) 28 Legal Studies 234CrossRefGoogle Scholar.
5 No judgment is made here about the extent to which contemporary civic republicans are faithful to the tenets of the classical republican tradition. The term ‘republicanism’ is instead here used to ‘designate the attempts by current political scientists, philosophers, historians, lawyers, and others to draw on this classical republican tradition, adapting and revising its various ideas, in the development of an attractive public philosophy intended for contemporary purposes’. Pettit, P and Lovett, F ‘Neorepublicanism: a normative and institutional research program’ (2009) 12 Annual Review of Political Science 12Google Scholar.
6 Bach, M and Kerzner, L A New Paradigm for Protecting Autonomy and the Right to Legal Capacity: Prepared for the Law Commission of Ontario (Ontario: Law Commission of Ontario, 2010) p 58Google Scholar.
7 Lewis, O ‘Advancing legal capacity jurisprudence’ (2011) 6 EHRLR 700Google Scholar.
8 More precisely, we might say that the possible use of legal capacity presupposes mental capacity in these cases, since some have argued that legal capacity can be held by someone and exercised for them by another they have previously appointed to do so, even when they cannot directly use it themselves. For discussion, see Bieby, P ‘The conflation of competence and capacity in English medical law: a philosophical critique’ (2005) 8 Medicine, Health Care, and Philosophy 357Google Scholar.
9 Mental Capacity Act 2005, s 3(1).
10 Lewis, above n 7, p 700.
11 For a more comprehensive survey, see Glaser, D ‘Liberal egalitarianism’ (2014) 140 Theoria 26Google Scholar.
12 This was originally proposed as an account of free will in Frankfurt, H ‘Freedom of the will and the concept of a person’ (1971) 68 Journal of Philosophy 5CrossRefGoogle Scholar. For an introductory overview of philosophical challenges to it, see Taylor, J ‘Introduction’ in Personal Autonomy: New Essays on Personal Autonomy and Its Role in Contemporary Moral Philosophy (Cambridge: Cambridge University Press, 2005) p 1CrossRefGoogle Scholar. For reasons to resist hierarchical and related procedural accounts of autonomy in the context of debates over mental capacity, see Freyenhagen, F and O'Shea, T ‘Hidden substance: mental disorder as a challenge to normatively neutral accounts of autonomy’ 9 Int JLC 53Google Scholar.
13 For an overview of this approach in philosophy, see Mackenzie, C and Stoljar, N (eds) Relational Autonomy: Feminist Perspectives on Autonomy, Agency and the Social Self (Oxford: Oxford University Press, 2000)Google Scholar, and for a critical review of its use in discussions of decisional capacity law, see Series, L ‘Relationships, autonomy and legal capacity: mental capacity and support paradigms’ (2015) 40 Int'l JL & Psychiatry 80Google ScholarPubMed. See also Kong, C Mental Capacity in Relationship: Decision-Making, Dialogue, and Autonomy (Cambridge: Cambridge University Press, 2017)CrossRefGoogle Scholar.
14 Quinn, G, ‘Seminar on legal capacity: an ideas paper’ in Centre for Disability Law and Policy, Submission on Legal Capacity to the Oireachtas Committee on Justice, Defence & Equality (Galway: NUI Galway, 2011) pp 90–91Google Scholar; see also Bach and Kerzner, above n 6, p 167. Discussion of further objections can be found in Flynn, E and Arstein-Kerslake, A ‘Legislating personhood: realising the right to support in exercising legal capacity’ (2014) 10 Int JLC 81Google Scholar.
15 Quinn, above n 14, p 93.
16 Bach and Kerzner, above n 6, p 60.
17 Ibid, p 66.
18 Ibid: ‘This minimum threshold of human agency we might characterize as: to act in a way that at least one other person who has personal knowledge of an individual can reasonably ascribe to one's actions, personal will and/or intentions, memory, coherence through time, and communicative abilities to that effect.’ Furthermore, even if decisions are made for others in their best interest on this basis, Bach and Kerzner claim that such a ‘facilitated status would not define them as being “legally incapable”’: Bach and Kerner, above n 6, p 92.
19 Ibid, p 40.
20 Quinn, G ‘Rethinking personhood: new directions in legal capacity law & policy’ in Centre for Disability Law and Policy, Submission on Legal Capacity to the Oireachtas Committee on Justice, Defence & Equality (Galway: NUI Galway, 2011) p 54Google Scholar.
21 Bach and Kerzner, above n 6, pp 38–44.
22 Mental Capacity Act 2005 s 1(6).
23 Ibid, s 1(3).
24 Lovett, F A General Theory of Domination and Justice (Oxford: Oxford University Press, 2010) p 2CrossRefGoogle Scholar.
25 Lovett, F ‘What counts as arbitrary power?’ (2012) 5 Journal of Political Power 137CrossRefGoogle Scholar.
26 Cicero quoted and translated in Skinner, Quentin ‘Classical liberty and the coming of the English Civil War’ in van Gelderen, M and Skinner, Q (eds) Republicanism: A Shared European Heritage: Volume II (Cambridge: Cambridge University Press, 2002), p 10Google Scholar (emphasis added).
27 Pettit, above n 4, p 52; Laborde, C Critical Republicanism: The Hijab Controversy and Political Philosophy (Oxford: Oxford University Press, 2008) p 11CrossRefGoogle Scholar.
28 However, see the debates in Laborde, C and Maynor, J (eds) Republicanism and Political Theory (Oxford: Blackwell, 2008)Google Scholar part I. For a response from a civic republican approach to disability, see O’Shea ‘Disability and domination', above n 4, pp 138–40.
29 Pettit, above n 4, p 71.
30 Mental Capacity Act 2005 s 3(1). Similarly, the landmark MacArthur study of decision making competence of patients in state law in the US has identified four related (albeit not identical) necessary conditions for decision making capacity: ‘understanding information relevant to their condition and the recommended treatment, reasoning about the potential risks and benefits of their choices, appreciating the nature of their situation and the consequences of their choices, and expressing a choice.’ Grisso, T, Appelbaum, P and Hill-Fotouhi, C ‘The MacCAT-T: a clinical tool to assess patients’ capacities to make treatment decisions’ (1997) 48 Psychiatric Services 1415Google ScholarPubMed. See also the presentation of the legal and clinical results of the MacArthur study in Grisso, T and Appelbaum, P Assessing Competence to Consent to Treatment: A Guide for Physicians and Other Health Professionals (Oxford: Oxford University Press, 1998)Google Scholar.
31 Tan, J, Stewart, A, Fitzpatrick, R and Hope, T ‘Competence to make treatment decisions in anorexia nervosa: thinking processes and values’ (2006) 13 Philosophy, Psychiatry, & Psychology 267Google ScholarPubMed; Charland, L ‘Anorexia and the MacCAT-T Test for mental competence: validity, value, and emotion’ (2006) 13 Philosophy, Psychiatry, & Psychology 283Google Scholar; Grisso, T and Appelbaum, P ‘Appreciating anorexia: decisional capacity and the role of values’ (2006) 13 Philosophy, Psychiatry, & Psychology 293Google Scholar; Tan, J, Stewart, A, Fitzpatrick, R and Hope, T ‘Studying penguins to understand birds’ (2006) 13 Philosophy, Psychiatry, & Psychology 341Google Scholar.
32 On the wider problem of legal indeterminacy, see Endicott, T Vagueness in Law (Oxford: Oxford University Press, 2000)CrossRefGoogle Scholar.
33 Richardson, G ‘Mental capacity in the shadow of suicide: what can the law do?’ (2013) 9 Int JLC 90Google Scholar.
34 Sydney, A Discourses Concerning Government (Indianapolis: Liberty Classics, 1990) p 441Google Scholar.
35 Mental Capacity Act 2005 s 2(1).
36 Law Commission Consultation Paper 128, Mentally Incapacitated Adults and Decision-Making – A New Jurisdiction (London: HMSO, 1993) para 3.11.
37 Dhanda, above n 2, p 445.
38 Laborde, above n 27, p 11.
39 Thematic Study by the Office of the United Nations High Commissioner for Human Rights on enhancing awareness and understanding of the Convention on the Rights of Persons with Disabilities, A/HRC/10/48 (26 January 2009), para 49.
40 For concerns about such reversion, see Dhanda, above n 2, p 445.
41 For example, see Pettit, P ‘Freedom: psychological, ethical, and political’ (2015) 18 Critical Review of International Social and Political Philosophy 386CrossRefGoogle Scholar, and Pettit, P On the People's Terms (Cambridge: Cambridge University Press, 2012) pp 75CrossRefGoogle Scholar, 78, 87, 94, 130, 138.
42 Re E (Medical Treatment Anorexia) [2012] EWHC 1639 (COP).
43 Redley, M, Hughes, J and Holland, A ‘Voting and mental capacity’ (2010) 341 BMJ 466CrossRefGoogle ScholarPubMed. For more extensive disqualification of voters on the grounds of mental disorder or incompetence in some US states, see Appelbaum, P ‘“I vote. I count”: mental disability and the right to vote’ (2000) 51 Psychiatric Services 849CrossRefGoogle ScholarPubMed.
44 On the limits to their use, see Jox, R, Michalowski, S, Lorenz, J and Schildmann, J ‘Substitute decision making in medicine: comparative analysis of the ethico-legal discourse in England and Germany’ (2008) 11 Medicine, Health Care and Philosophy 153–154CrossRefGoogle ScholarPubMed.
45 See Henderson, C, Flood, C, Leese, M, Thornicroft, G, Sutherby, K and Szmukler, G ‘Views of service users and providers on joint crisis plans: single blind randomized controlled trial’ (2009) 44 Social Psychiatry and Psychiatric Epidemiology 369CrossRefGoogle ScholarPubMed.
46 For such an underspecified appeal to relational autonomy, see Bach and Kerzner, above n 6, p 40. Hierarchical accounts of autonomy are also not well placed to explain why advanced care planning enhances freedom, since they ascribe autonomy to a synchronic psychological relationship (such as one between desires and volitions). Respecting the wishes of the earlier self or otherwise giving it control over the social environment of the current self does not secure the appropriate concurrent psychological relationships in which autonomy is located.
47 Pettit offers an example with the same pre-authorisation structure: ‘If I allow you to keep the liquor cabinet key or to hide my cigarettes, you still interfere with me when you act under that permission. But your interference will not be control or domination; the interference will be controlled or nonarbitrary.’ Pettit, P ‘A republican right to basic income?’ (2007) 2 Basic Income Studies 6Google Scholar.
48 Bach and Kerzner, above n 6, p 91.
49 Ibid, p 93.
50 Flynn and Arstein-Kerslake, above n 14, p 99. See also the discussion of ‘serious adverse effects’ in Bach and Kerzner, above n 6, pp 130–158.
51 Arendt, H The Origins of Totalitarianism: New Edition with Added Prefaces (San Diego, CA: Harcourt Brace & Company, 1973) p 447Google Scholar.
52 Ibid, pp. 296, 298.
53 Ibid, p 301.
54 Balibar, É ‘What is a politics of the rights of man?’ in Swenson, J (ed) Masses, Classes, Ideas: Studies on Politics and Philosophy Before and After Marx (London: Routledge, 1994) p 213Google Scholar.
55 Hamilton, L Freedom is Power: Liberty Through Political Representation (Cambridge: Cambridge University Press, 2014) p 52CrossRefGoogle Scholar.
56 For critical discussion of these wider problems within republicanism, see McCormick, J ‘Machiavelli against republicanism: on the Cambridge School's “Guicciardinian Moments”’ (2003) 31 Political Theory 615CrossRefGoogle Scholar, and Gourevitch, A From Slavery to the Cooperative Commonwealth: Labor and Republican Liberty in the Nineteenth Century (Cambridge: Cambridge University Press, 2015) ch 1Google Scholar.
57 See also the discussion of self-rule in Celikates, R ‘Freedom as non-arbitrariness or democratic self-rule?’ in Dahl, C and Anderson, T Nexø (eds) To Be Unfree: Republicanism and Unfreedom in History, Literature, and Philosophy (Bielefeld: Transcript Verlag, 2014) p 37Google Scholar.
58 Pettit, above n 41, p 260.
59 For an alternative account of republican opposition to elitism, see McCormick, J Machiavellian Democracy (Cambridge: Cambridge University Press, 2011)CrossRefGoogle Scholar.
60 Pettit, above n 4, p 83. For a republican rejoinder, see Honohan, above n 4, p 186.
61 Gourevitch, above n 56, p 183.
62 For further discussion of the relationship between domination and usurpation of agency, see Markell, P ‘The insufficiency of non-domination’ (2008) 36 Political Theory 9CrossRefGoogle Scholar.