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Chapter 1

The Legal Landscape and the

Challenge for Practitioners

Introduction

Consider the following:

Margo is a 68-year-old woman who is in the early stages of Alzheimer’s. She gets confused periodically, but most of the time her memory is moderately good. She lives with her adult son who refuses to let social workers see her, although they were alerted to Margo’s case after a concerned neighbour contacted the local authority. The very few times social workers have been able to see Margo, her squalid living conditions were thought to be contributing to her poor health: the house was extremely dirty with evidence of a rat infestation and she appeared to be not eating regular meals, with her weight dropping to dangerously low levels. In addition, her son exercised a worrying control over her. For instance, the fridge and pantry doors had locks attached, and Margo’s son had the only keys. When asked about this, her son explained this was a necessary measure to prevent Margo from overeating. It is clear to the social workers that Margo’s health and well-being are at risk in this situation – not only does her physical health seem to be suffering but also her Alzheimer’s seems to be getting rapidly worse. Social workers think that both of these can, at least in part, be attributed to the son’s power and influence in the house and the emotional distress that he causes her. Margo is adamant, however, that she wants to remain at home with her son. The social workers have to assess whether Margo has capacity to decide about her living and care arrangements and if not, whether it is in her best interests to move her to a care facility and prevent contact with her son.

If you were the social worker, what would you do? What initial values and considerations would inform your decision? In the past, practitioners may have intuitively felt an obligation to intervene in situations like these, regardless of the paternalistic overtones. But in recent years our concept of mental capacity has altered the presumption towards paternalistic action, with the Mental Capacity Act 2005 in England and Wales (MCA) transforming the way in which practitioners in social care, medicine and the law are legally obliged to approach the decision-making capacities of individuals with impairments. The presumption of capacity in the first instance indicates an autonomy-based rather than paternalistic approach to deciding questions about a person’s care and treatment. Within this framework, however, the appropriate course of action to take in Margo’s case is not immediately clear – if she has the capacity to decide to remain at home and in contact with her son, does this mean practitioners do nothing? Equally, if she lacks capacity, does this mean practitioners ignore her deeply held values, which might include a relationship with her son and living in her own home? This dual impulse to respect the choices of individuals while protecting and safeguarding them from harm remains a fundamental tension at the heart of many dilemmas facing practitioners.

This tension is easy to state. Ten years of experience of the MCA in action has also made clear that it is impossible to pretend that individuals exist in isolation. Rather, they are situated within complex relationships that can support and enable, as well as obstruct and disable, their ability to decide, to act and to secure their own interests.

However, to date, what is all too often lacking is a clear framework within which to resolve this tension and answer these questions. By challenging the UK to abolish ‘substituted’ decision-making in favour of supported decision-making, the Committee on the Rights of Persons of Disabilities has made the tension even more acute, but without, on a proper analysis, assisting us to resolve it.

By drawing together the insights of a philosopher and a practising barrister, we seek in this book to provide a set of ethical principles that can inform and guide both the assessment of capacity and the making of best interests decisions under the MCA. These principles, we suggest, can help answer the questions of when and how professionals can intervene in a person’s life to secure her greater autonomy, while respecting her as an individual – as a subject, not an object. In so doing, we suggest that we can start to bring home – to operationalise – the Convention on the Rights of Persons with Disabilities (CRPD) even without changes to the law.

Our key message is that we cannot properly deploy the MCA without a set of ethical skills. To that end, and in the body of the book, we aim to guide practitioners through ethical reflection in three key areas:

1. The role of relationships in mental capacity: why and how relationships matter in developing capacity and establishing supportive decision-making mechanisms; the defining features of those relationships that promote or diminish autonomy.

2. The dialogical skills which enable and empower individuals with impairments: what these dialogical skills are and how to cultivate them; the importance of critical awareness and understanding of how prejudices can impact on dialogue; how dialogue reveals aspects of capacity that may not be fully captured in the functional test and can impact on the outcome of capacity adjudication; reasons why an individual’s participation is important in both capacity and best interests assessments.

3. The role of the capacity and best interests assessor: how social care workers, clinicians and legal practitioners can impact positively or negatively on the autonomy and agency of individuals; how values inform and orientate capacity assessments; the need for transparency in capacity and best interests adjudications.

This chapter places what is to come later in the book in its context, providing an overview of the MCA, the inherent jurisdiction of the High Court, and the CRPD. We also explore the question of whether capacity is ‘in one’s head’ or whether it is – at least in part – a function of the interaction between the person and her relationships. While some case law suggests the former, we ultimately suggest that it is both possible and legitimate to interpret the MCA in the latter fashion, and that this provides a better method of responding to the complexities of cases such as Margo’s. This analysis provides the necessary framework for our discussions in the remainder of the book insofar as they relate to capacity.

Outline of the MCA, the inherent jurisdiction of the High Court, and the CRPD

The MCA was intended to establish a comprehensive statutory framework setting out how decisions should be made by and on behalf of adults whose mental capacity to make specific decisions is in doubt. It also clarifies what actions can be taken by others involved in the care or medical treatment of people lacking capacity to consent. The framework provides a hierarchy of processes, extending from informal day-to-day care and treatment, to decision-making requiring formal powers and ultimately to court decisions and judgments. The full range of processes was intended to govern the circumstances in which necessary acts of caring can be carried out, as well as the necessary decisions taken on behalf of those lacking capacity to consent to such acts or to make their own decisions.

Unusually for English legislation, the MCA is expressly based on statutory principles. Section 1 of the Act starts with three ‘screening’ principles concerning capacity: a presumption of capacity, a requirement to provide all practicable assistance before a person is treated as incapable and a declaration that a person must not be treated as incapable ‘merely because he makes an unwise decision’. As regards the basis for acting or deciding on behalf of a person lacking decision-making capacity, the MCA is predicated on two overarching principles: (1) best interests: an action done or a decision made under the act for or on behalf of a person who lacks capacity must be done, or made, in his best interests and (2) the least restrictive option: before the act is done or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Section 2 of the MCA sets out the definition of a person who lacks capacity. Section 3 sets out the test for assessing whether a person is unable to make a decision and therefore lacks capacity. By applying these together, MCA 2005 adopts a functional approach to defining capacity, requiring capacity to be assessed in relation to each particular decision at the time the decision needs to be made, and not the person’s ability to make decisions generally. Further, the inability to make the particular decision in question must be because of ‘an impairment of, or a disturbance in the functioning of, the mind or brain.’ Precisely how we are to interpret the words ‘because of’ is addressed in greater detail below.

Section 4, in turn, sets out a checklist of factors that must be considered in deciding what is in a person’s best interests, aimed at identifying those issues most relevant to the individual who lacks capacity (as opposed to the decision-maker or any other persons). Although the test is intended to be an objective one, the courts have made clear that the purpose of the best interests is to require the decision-maker to consider matters from the person’s point of view (Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67). The person’s ascertainable wishes and feelings therefore carry great weight, even if they are not determinative (Briggs v Briggs & Ors [2016] EWCOP 53).

Standing alongside the MCA is the inherent jurisdiction of the High Court to protect ‘vulnerable adults’: those who have mental capacity applying the MCA test, but who are or are reasonably believed to be, either (1) under constraint or (2) subject to coercion or undue influence or (3) for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent (A Local Authority v (1) MA (2) NA and (3) SA [2005] EWHC 2942; endorsed in DL v A Local Authority and Others [2012] EWCA Civ 253). The precise extent of the High Court’s jurisdiction – described in DL v A Local Authority and Others as ‘the great safety net’ – is unclear. In particular, it is ambiguous as to whether it is limited to taking steps directed against those who are coercing or placing the individual under duress, or whether the High Court can take steps directed against the vulnerable adult herself (i.e., to remove her from the place where she is subject to coercion).

As discussed in Chapter 6, we take the view that, while there is undoubtedly an important place for the use of the inherent jurisdiction to create a ‘safe space’ around the individual, its use against the person herself is difficult to reconcile with the distinction currently drawn in the law between those with capacity and those without capacity. There are other ways in which to draw the line, but for better or worse, the law at present in England and Wales does draw this distinction. One of the key purposes of this book is to outline how we can better respond within the framework of the MCA to those situations in which a person is suffering harm as a result of a combination of a cognitive impairment and the actions of those around them. We address this in the second section of this chapter after we have sketched an outline of how the CRPD challenges both law and practice in this area.

The CRPD was concluded in 2006. It seeks to bring about a radical change in the approach adopted in the social, political and legal arenas to those with disabilities (and, indeed, to the very concept of disability). Among other provisions, it seeks to bring about a fundamental shift away from the taking of decisions on behalf of individuals on the basis of an asserted lack of mental capacity. The CRPD has been very widely ratified, including by the UK. The CRPD has not been incorporated into domestic law, so it does not directly bind practitioners in the same way as does the European Convention on Human Rights (ECHR). However, it imposes obligations on the UK as a state, and is now routinely referred to by both the European Court of Human Rights and the English courts to help interpret the ‘living instrument’ of the ECHR as it applies to person with disabilities. At least as interpreted by the Committee on the Rights of Persons with Disabilities, compliance with Article 12 of the CRPD (which provides for equal recognition before the law) means that states party to the CRPD should replace legislation providing for substitute decision-making for incapacitated adults based ‘on what is believed to be in the objective “best interests” of the person concerned, as opposed to being based on the person’s own will and preferences’.1 The Committee also denies the validity of the concept of mental capacity, contending that it is contingent on social and political contexts ‘as are the disciplines, professions and practices which play a dominant role in assessing mental capacity.’2 In 2017, the Committee examined the compliance of the UK with the CRPD, and recommended that the UK ‘abolish[ed] all forms of substituted decision-making concerning all spheres and areas of life by reviewing and adopting new legislation in accordance with the Convention to initiate new policies in both mental capacity and mental health laws,’ and ‘repeal[ed] legislation and practices that authorise non-consensual involuntary, compulsory treatment and detention of persons with disabilities on the basis of actual or perceived impairment’.3 Adopting this recommendation would mean repealing not just the Mental Health Act 1983 but also the MCA. There is, in reality, little prospect that the government will do so; further, there is a live and hot debate as to whether the government should do so.

That debate is outside the scope of this book.4 Our core task is to enable those applying the law as it stands to better respond to situations of complexity, rather to suggest how the law might change.5 Nonetheless, we should perhaps lay our cards on the table here and make clear that:

• We do not consider the concept of mental capacity to be fundamentally illegitimate, even if we would be the first to admit that how it is assessed often leaves much to be desired.

• We do not consider the concept of ‘best interests’ to be fundamentally illegitimate, especially where it is interpreted in the fashion required by the case law, which requires real weight to be given to the wishes and feelings of the individual.

• As discussed further in Chapter 2, we consider that the approach of the Committee on the Rights of Persons with Disabilities is predicated on an extremely ‘thin’ version of autonomy which does not always serve the interests of individuals with cognitive impairments.

• Intervention to secure the interests of those with cognitive impairments enmeshed in disabling relationships is not contrary to the CRPD (taken as a whole) and in fact can be required, by Article 16(1).6 Such interventions should – primarily – be directed against the third parties who are harming the interests of the individual. However, steps can properly be taken in the best interests of the individual where she lacks the requisite mental capacity (i.e., to remove her to a safe place or prevent her having contact with the abuser) and where such steps can properly be justified as promoting her health, welfare, self-respect and dignity – for instance, her autonomy in the wider sense.7 This is so even if the individual objects to those steps. However, the greater the objection, the greater the justification required.

• While it is not the primary focus of this book, there may also be circumstances when, so as to secure these same interests, care or treatment may need to be delivered to an individual lacking capacity to consent. Again, such may be done in the face of her objection where there are sufficiently cogent reasons to consider that such will secure her health, welfare, self-respect and dignity.

Capacity: causative nexus or embedded within actual circumstances?

As set out above, we share the view that the concept of mental capacity is legitimate; further, we share the aim that we want to write a book which is of use to practitioners applying the MCA as it stands. However, we also share grave reservations about one model of decision-making capacity which entirely divorces the individual’s cognitive abilities from the circumstances in which she finds herself. As we have seen above, the MCA provides that a person lacks capacity in relation to a matter if at the material time, she is unable to make a decision in relation to it (i.e., she cannot understand, retain, use or weigh the relevant information, or communicate her decision) because of a disturbance or impairment in the functioning of her mind or brain. As MacFarlane LJ put it in PC & NC v City of York Council [2013] EWCA Civ 478, ‘for the Court to have jurisdiction to make a best interests determination, the statute requires there to be a clear causative nexus between mental impairment and any lack of capacity that may be found to exist’(para. 52, emphasis added). This was amplified by Parker J in NCC v TB and PB [2014] EWCOP 14. Interpreting what MacFarlane LJ had said in York, Parker J held that ‘the true question is whether the impairment/disturbance of mind is an effective, material or operative cause. Does it cause the incapacity, even if other factors come into play? This is a purposive construction’ (para. 86).

What does this mean in practice? To use an analogy, imagine I turn up late to an important meeting. When my boss asks me why I’m late, I say that it was because of the bus. The bus was late, effectively causing me to show up late at the meeting. One reading of the approach set out above is that even if additional circumstances strongly influence the inability to decide – for example, relational dynamics, such as mistreatment and coercion – then these would not be sufficient reasons for a finding of incapacity under the MCA. This suggests that practitioners should not consider the actual circumstances of a person’s situation, but focus mainly on whether mental impairment – what’s in a person’s head – affects her decision-making ability. The conditions of mental capacity should therefore be divorced from the individual’s real-life context.

To use the example of Margo, this approach would focus narrowly on whether her Alzheimer’s condition impacts on her ability to make a decision about remaining at home and continuing to live with her son. How does her mental impairment affect her deliberation: is she able to retain and understand the relevant information about the risks/benefits of having contact with her son? Can she use and weigh it and communicate a decision? Concerns about her son’s coercive and potentially abusive conduct could only play a very limited a role in the capacity assessment. Any finding of incapacity has to be because her Alzheimer’s prevents her from passing the functional test. Even if she freely divulges being fearful of her son (an admission of his undue influence) and admits to how this fear aggravates her confusion (how this undue influence impacts on her impairment), these factors would have no bearing on the capacity assessment, particularly if during the test there is little or no evidence that her impairment is directly impacting on her cognitive processes (such as confusion about the information or forgetfulness during the period of assessment). Applying a very narrow version of the causative nexus, Margo has capacity, thereby dramatically altering the nature of the steps it might be possible to take to secure her interests.

From a strict legal perspective, one might argue that this approach provides an important clarification as to which cases fall within or outside the scope of the MCA. It also seemingly provides much more latitude for individuals to make ‘unwise choices’ – a freedom that should be accorded to those with impairments.

The approach, however, does have rather puzzling implications. It appears to advocate that practitioners take individuals with impairments as isolated minds, removed from relationships and bodily interactions within their physical and social world. To use the tardiness example, this would be like my boss viewing my hypothetical decisions and actions as effectively causing my lateness (if I had left early enough, I would have been on time), to the exclusion of actual circumstances (like the bus not turning up on time, or being stuck in heavy traffic due to an accident, or my partner failing to fix my bicycle as promised, or the childminder cancelling last minute and the need to scramble for other arrangements). Despite the mundane nature of this example, even here divorcing our decisions and actions from actual circumstances can have serious consequences. If my boss doesn’t take into consideration any of these factors, she might actually decide that my tardiness is grounds for dismissal. But most of us are unlikely to think such an approach to be fair or appropriate or even commonsensical – the context matters. Likewise, and more pertinently, the context matters when we have to make decisions that affect our lives in profound ways, like who to marry, or where to live, or whether or not to have treatment for a life-threatening condition.

Importantly, we suggest that it is possible to take a different – broader – approach, while still remaining within the four walls of the MCA. We highlight here Re BKR [2015] SGCA 26, a case decided by the Singapore Court of Appeal. Singapore’s Mental Capacity Act 2008 (SMCA) is (materially for these purposes) an exact replica of that within England and Wales. In Re BKR, and for purposes of interpreting the relevant provisions of the SMCA, the Singapore Court of Appeal analysed the York decision in detail and held that evaluations of capacity would have little traction if the specifics of a person’s context and situation were removed from consideration. ‘[M]ental impairment may in some instances affect decision-making ability only in conjunction with P’s actual circumstances’, leading to the conclusion that ‘the court must take into account P’s circumstances in assessing his mental capacity’ (para. 120).8

The Singapore Court of Appeal outlined three conditions where the dynamics of a relationship – such as the actual or possible presence of undue influence – would be pertinent to assessments of mental capacity:

1. Whether the individual can retain, understand, or use the information that relates to whether there might be undue influence being applied, e.g., whether she can grasp that another person may have interests contrary to hers, and if not, whether this inability is caused by mental impairment.

2. Whether the individual is vulnerable to undue influence due to mental impairment, where her will is overborne in such a manner that she is unable to use and weigh the relevant information.

3. Whether an individual cannot realistically hope to obtain assistance in making decisions, where a finding of incapacity is because of the interplay between mental impairment and the lack of support (paras. 125–126).

Though this judgment comes from a different legal jurisdiction, we suggest that sets out an approach that it is entirely legitimate for practitioners in England and Wales to adopt given that: (1) it represents by far the most complete analysis of the interrelationship between impairment and the actions of others; and (2) it expressly seeks to do this within the framework of an Act materially identical to the MCA.

The Re BKR decision highlights a crucial issue. Behind both the MCA and the CRPD is a call to provide support and assistance to individuals so that they can make decisions which affect their lives and can be equal participants in social and political activities. However, directly contradicting this view of supportive decision-making is the picture that can be painted on the basis of what it means to be a decision-maker: an isolated being whose decisions are reached purely in one’s head, regardless of the surrounding context. Stated more bluntly, the picture of a capacitous decision-maker is fundamentally rigged against persons with impairments, providing little space, in reality, for the relational supports and mechanisms that are needed to help realise their decision-making abilities.

Thus, we suggest the Re BKR judgment is right to recommend a more holistic view of persons with impairment. Rather than isolated minds, denuded of all complex factors which shape their personal identity, these embodied, unique individuals are embedded within relationships and actual circumstances. As such, the interplay between the individual and complexities within her context, including the quality and nature of her relationships (whether they apply coercion and undue influence, whether they can realistically provide assistance and support for the individual), should be considered in evaluations of decision-making capacity.

To return to the example of Margo, this more holistic approach would view the relational dynamic between her and her son as highly relevant to the question of Margo’s mental capacity. Questions would be asked as to whether her son’s undue influence worsens her ability to use and weigh information, whether she can understand that her son’s actions and interests might differ from her own, and whether her son can provide any assistance to her in making decisions about her living arrangements. The interaction between Margo’s Alzheimer’s and her actual circumstances – her relationship with her son and isolation from others, the squalid conditions of her home – would be contributing factors that practitioners would consider in their assessment.

We suggest that this approach legitimately allows us to avoid an overly narrow interpretation of the causative nexus. Further, the judgment’s recognition that one’s circumstances can impact on decision-making helps enrich the framework of capacity by accommodating how individuals with impairments are embedded within relationships that can make a material difference to their agency and decision-making abilities. As we will explore in this book, accommodating such complexity is crucial because it means we ignore neither the fact that such a support network might be absent and practitioners may be obliged to help foster that network, nor how a person’s capacity can be enhanced through relationship. Remaining wedded to a picture of decision-making that is based entirely on the isolated mind risks judging those who require support as permanently falling short of the threshold of capacity – a possibility that ultimately contravenes the empowering ethos behind the MCA and CRPD.

We should emphasise that our book is designed for those who are operating within the MCA. It will therefore always be necessary for any capacity assessment to identify how the relevant impairment or disturbance in the functioning of the person’s mind or brain is said to cause the inability to make the decision in question. The reasoning adopted by the Singapore Court of Appeal in Re BKR – we suggest – can equally be adopted by those assessing capacity in England and Wales. However, and as we discuss further below (in particular in Chapter 6), this has two very important consequences:

• Adopting this reasoning may well make it easier to find that a person with a cognitive impairment enmeshed in a complex relationship lacks capacity to make material decisions.

• Such a determination can only be legitimate where it is recognised that a crucial part of any best interests decision or action is taken with a view to securing either the gaining or return of the individual’s decision-making capacity by ensuring that she is surrounded by the support that she requires.

Although our book is aimed at those who are operating within the four walls of the MCA, we emphasise that many claims about the MCA are themselves not enshrined in law but represent pervasive assumptions that can and should be challenged. We argue that the reflections we set out in the chapters that follow are both consistent with the legislation and the intent behind it. Rather than reduce questions of capacity to cognitive, mental processes, this book urges practitioners to consider how mental capacity can also be relational – meaning that our ability to make decisions requires a number of skills and abilities that are fostered within supportive contexts and relationships. Navigating the complex, difficult terrain around capacity and best interests demands a more holistic view of the individual, especially if an ethic of enablement and empowerment is to run through our professional practices of care, assessment and advocacy.

Outline of the book

First, a note on language: throughout this book we use the female pronoun in the recognition that even today our language still veers towards the use of the male pronoun. Ideally, we would have liked to avoid the use of either, fully conscious of the fluidity of these gender categories, but the impulse towards grammatical correctness leads us to use ‘she’ rather than ‘they’ when speaking of a singular individual.

Moreover, we use the term ‘impairment’ rather than ‘disability’ throughout the book: these two concepts are controversial on many levels. From a social model of disability view, the use of ‘impairment’ is preferable, mainly to denote certain factual biological features of the body and to distinguish from ‘disability’, which is thought to be caused by environmental/social/political structures. But in other models of disability, such as the International Classification of Disability (see Chapter 6), the term impairment refers to problems of body functioning which implies deviation or loss – a view that differs substantially from the neutrality of ‘impairment’ within the social model of disability. We are mindful of these differences and though we have our reservations about the social model, we nonetheless use the terms ‘impairment’ and ‘disability’ in accordance with this approach.

The purpose of our book is to provide practical, reflective guidance to practitioners on some crucial complexities within the practice of capacity and best interests assessment. Each chapter covers one area of complexity that we think will be important in light of a more relational approach to capacity. We use examples, case studies and questions to foster critical reflection of one’s own professional practices. Most of the case studies relate to decisions made by the Court of Protection, and we have deliberately chosen these to show how the relevant issue has been thought about when it has reached the court. We do not necessarily say that each decision is one that we agree with, and we point out some which we consider to be questionable.

Chapter 2 examines what autonomy means. Most practitioners understand decision-making capacity as the gatekeeper of autonomy and have ideas about what it means to respect personal autonomy, but we encourage some critical reflection on certain assumptions around the concept, such as the idea of individual self-sufficiency and independence. Instead, we introduce two key nuances to autonomy: the importance of relational autonomy – how relationships and the social context can facilitate autonomy skills – and absorbed coping: how perception, emotion and the body interact and cope with one’s environment. Incorporating these two aspects into our concept of autonomy will help practitioners become more attuned to the conditions and experiences of impairment and disablement.

Chapter 3 explores two key questions: why do relationships matter to the decision-making capacity of individuals and what kinds of skills and competencies do those around the person with impairment need to have in order to be supporting, enabling and empowering influences? We examine in more detail the specific practices and narratives of those relationships which can enhance and promote the capacity of individuals with impairments. The very nature of the functional test of capacity tends to focus more on the competencies of the individual whose capacity is in question. However, when we consider how relationships affect capacity, our focus will need to shift towards the various abilities of those around the individual with impairment.

Chapter 4 poses the questions. How can practitioners (1) distinguish between narratives that are enabling or disabling and (2) consciously engage in narrative practices that encourage and empower a person’s decision-making abilities? Certain narratives can have an impact on decision-making capacity: for instance, diminishing, denigrating narratives affect the range of choices that one envisages; they impact on the process in which individuals make decisions. The unique perceptual and cognitive challenges among those with impairment amplify the significance of surrounding narratives. We explore the importance of guarding against harmful stigmatising views about impairment where individuals are reduced to their diagnosis, and also discuss the kinds of narratives that encourage a person’s authentic self-expression and autonomy.

Chapter 5 discusses the ethical role of assessors and urges reflection on the ethical dimensions to capacity and best interests assessment. There are two dangers that arise in assessment, such as the inconsistent justification for interventions into the lives of individuals against their wishes and the exacerbation of power inequalities. To alleviate these dangers, we critically examine: (1) the presuppositions of assessment; (2) the interactions of assessment; (3) the reparative potential of assessment.

Chapter 6 questions the stark boundary between capacity and best interests. We discuss how both form part of a spectrum: a finding of incapacity does not automatically mean that the individual’s views are not important, nor does a finding of capacity mean that the obligations to support and assist individuals somehow no longer apply.

Finally, Chapter 7 briefly summarises the implications of our analysis for practitioners. We encourage practitioners to reflect on a holistic view of the person as situated within actual circumstances and relationships, so that any proposed interventions are sensitive to how the individual interacts with her environment and relational context.

1 Committee on the Rights of Persons with Disabilities, ‘General Comment on Article 12: Equal recognition before the law,’ para 23. Available at: www.ohchr.org/EN/HRBodies/CRPD/Pages/GC.aspx.

2 Ibid, para 14.

3 Concluding Observations on the United Kingdom (3 October 2017, CRPD/C/GBR/CO/1), paras 31 and 35.

4 It is covered, for instance, in the report of the Essex Autonomy Project on compliance of the mental capacity regimes in the UK with the CRPD: https://autonomy.essex.ac.uk/subject/crpd.

5 However, one of us (ARK) has been heavily involved in law reform work in this area as consultant to the Law Commission’s Mental Capacity and Deprivation of Liberty project (Law Com No 272 (Law Commission 2017)).

6 Article16(1) requires States Parties to ‘take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects’.

7 Article 16(4) provides that ‘States Parties shall take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence or abuse, including through the provision of protection services.’

8 The Singapore Court of Appeal considered that this was, in fact, what the Court of Appeal had held in the York case, and that the Court of Protection had also held the same in two earlier cases: Re A (Capacity: Refusal of Contraception) [2010] EWHC 1549 (Fam) and The London Borough of Redbridge v G and Others [2014] EWHC 485 (COP).