Thursday, 22 June 2017

Mental Capacity in Relationship

Camillia Kong is Lecturer in Philosophy at the University of Kent and Research Associate at the Ethox Centre, University of Oxford. She researches and has published on moral and political philosophical issues around the medico-juridical concept of capacity, mental disorder, and intellectual impairment. Her recent work also examines ethical issues around psychiatric genomics.

What should medical and legal professionals do when a person with intellectual impairment chooses to remain within an abusive and disabling environment? Should these professionals even be considering the difference between relationships and care environments which promote or disable the autonomy of individuals with a learning disability or mental disorder? Or is this paternalism gone one step too far?

In my new book Mental Capacity in Relationship: Decision-making, dialogue, and autonomy I explore these complex issues through the prism of mental capacity legislation in England and Wales and human rights conventions. Legal developments have revealed a number internal and external criticisms around the concept of mental capacity: in England and Wales medico-juridical professionals protect the right of autonomy of those who pass a legal functional test of mental capacity, but how this test should be interpreted is subject to internal debate.

Some legal judgments suggest an intrapersonal focus of mental capacity, whilst others indicate that the promotion of autonomy amongst those with impairments should have an interpersonal focus, where mental capacity will depend on the relationships and communities around the individual in question. Moreover, with the advent of the UN Convention for the Rights of Persons with Disabilities (CRPD), external critiques charge that the concept of mental capacity represents outdated, paternalistic, and discriminatory attitudes towards those with impairments, fundamentally designed to undermine their right of autonomy.

Both these internal and external critiques are addressed in my defense of a relational concept of mental capacity, where relationships and intersubjective dialogue have an important impact on the decisional capacity of individuals with impairments. In the book, I recommend caution against disposing with the concept of mental capacity as endorsed by the ‘will and preferences’ interpretation of Article 12 in the CRPD and further argue that mental capacity cannot be reducible to abilities ‘within one’s own head’, despite this pre-eminent understanding in both theory and practice. Core philosophical ideas that are operationalised within mental capacity law – such as rights, rationality, autonomy, and beneficence – need not presume an individualistic focus, but can be interpreted relationally.

Attempts to reduce mental capacity to an intrapersonal capacity is not only question-begging, but rests on an unwarranted philosophical assumption that individuals with impairments must be ‘contrast cases’. At root, what is needed is a more inclusive, philosophical conceptualisation of key normative concepts applied within the law, particularly if we are to be properly attentive to the phenomenology of impairment which strongly suggests the importance of relational support in the exercise of decisional capacity.

If mental capacity is a relational concept, there likewise needs to be better clarity around the ethical characteristics, obligations, and duties incumbent on the surrounding relationships as well as capacity assessors. My book outlines various conditions that need to be met in the justification of third-party interventions into a person’s decisions to remain within disabling relationships. Various practices must also be present in those relationships that enable as opposed to disable the autonomy of individuals with impairments, of which I explore through a concept I call hermeneutic competence.

Hermeneutic competence denotes an ethical orientation that is focused on the dialogical practices and competence of those who are responsible for responding to an individual’s needs and capacities rather than the individual with impairment. These dialogical practices will help promote core autonomy skills, and are normative conditions for the relationships around the person with impairment, including those charged with assessing capacity. Assessments of capacity need not be paternalistic – even if they may reach a conclusion that overturns an individual’s subjective preference to remain within neglectful, disabling contexts – but this depends on them being firmly grounded in respect and recognition of the person. This makes the line between someone possessing mental capacity or not much more fluid, more akin to a scale rather than an either-or scenario.

Ultimately, relationships matter in determining whether a person has mental capacity or not. But medico-juridical practitioners might need to think more carefully about how they themselves comprise part of an individual’s environment, of how their narratives of enablement and disablement affect a person’s ability to make decisions about their care and treatment.

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