International Journal of Mental Health and Capacity Law

Risk and Capacity: Does the Mental Capacity Act Incorporate a Sliding Scale of Capacity?

Daniel Shipsides — 2025-02-21

The law places considerable weight on the question of whether a person has, or lacks, mental capacity. But approaches differ over whether and how capacity assessments should be sensitive to risk. Should a more stringent test be applied where risk is high? The question has generated considerable debate among bioethicists and jurists. In this paper, we review the literature and consider the standard of capacity defined in the Mental Capacity Act 2005 in England/Wales (MCA). While the MCA has been extensively discussed, the question of whether it adopts a ‘sliding scale’ for assessments of capacity has not been squarely addressed. We review the knotty legal history of the statute regarding this issue, and argue that the MCA is best understood as adopting neither a risk-ability nor a risk-evidence sliding scale. We show that the MCA nonetheless accommodates risk-sensitivity in capacity assessment in at least three different ways. The first derives the MCA’s approach to decision-specificity, the second from a risk-investment sliding scale, the third from what Law Commission once described as a ‘general authority’ for carers to act. We argue that the resulting approach steers around two objections that critics have levied against sliding scales for capacity assessment.

How Will You Hear My Voice? The Development of Indigenous-Centred Supported Decision-Making for Mental Health Service Users in Aotearoa New Zealand

Jessie Lenagh-Glue — 2025-02-21

There is an urgent need in the delivery of mental health services to incorporate a more human-rights oriented approach, and promote supported decision-making, whereby individuals are supported their own mental health decisions based on their will and preferences. Aotearoa/New Zealand’s current Mental Health Act enables the use of compulsory treatment, which breaches both international obligations under the Convention of the Rights of Persons with Disabilities and the principles of Te Tiriti o Waitangi (the Treaty of Waitangi), the covenant between Māori and the Crown which demands partnership and equity and the principle of self-determination for Māori. Mental Health Advance Preference Statements (MAPS) have been identified as a tool to promote supported decision-making and allow people a voice in their own care. This paper examines the foundations of a new project which is Māori-centred and co-produced with stakeholders, including tāngata whaiora who experience mental distress and those who work and research mental health services. The aim of this project is to create and implement culturally appropriate and locally relevant MAPS-type tools and then evaluate the impact of implementation. It is posited this will lead to improvements in health and equity, particularly for Māori.

Editorial

Kris Gledhill — 2025-02-21

Reducing Coercion

Graham Morgan — 2025-02-21

This is a transcript of a talk by Graham Morgan MBE – Mental Welfare Commission for Scotland – to the Third UK and Ireland Mental Health and Diversity Law Conference, July 2023. Nottingham (England.)

Graham drew on the Report of the Scottish Review into Mental Health Legislation for this talk and for a better understanding of how he thinks coercion could be further reduced would especially recommend reading the chapters on Human Rights Enablement, Autonomous Decision Making Tests, Supported Decision Making and Economic Cultural and Social Rights.

Book Review: Advance Directives Across Asia: A Comparative Socio-Legal Analysis, Edited by Daisy Cheung and Michael Dunn (Cambridge University Press, 2021)

Alex Ruck Keene — 2025-02-21

Book Review: The Medico-Legal Development of Neurological Death in the UK, by Kartina A Choong (Springer, 2023)

Alex Ruck Keene — 2025-02-21

Book Review: Suicide and the Law, by Elizabeth Wicks (Hart, 2023)

Alex Ruck Keene — 2025-02-21

Book Review: The Future of Mental Health, Disability and Criminal Law, Edited by Kay Wilson, Yvette Maker, Piers Gooding and Jamie Walvisch (Routledge, 2023)

Alex Ruck Keene — 2025-02-21