Finding a way to achieve the right balance between supporting disabled people’s autonomy whilst continuing to provide an appropriate level of protection for vulnerable people is the next big challenge in mental capacity law. The Mental Capacity Act 2005 has put England and Wales in a strong position to rise to that challenge, but we may well need to build another landmark to get us there.
The Mental Capacity Act 2005 (MCA), which applies in England and Wales, makes legal provision for a wide range of people (family members, health and social care professionals, courts) to make decisions in the best interests of a person who lacks the capacity to make a decision for themselves (section 3). It applies to anyone who has impaired decision-making capacity as a result of ‘an impairment of the mind or brain’ (section 2).
The Act has made a great deal of difference to the lives of women with intellectual and psychosocial disabilities. The statutory presumption of capacity means that those who seek to override the wishes of disabled people must first prove that they lack capacity to make their own decisions. The focus in the MCA on the least restrictive option has ensured that fewer disabled women are subjected to sterilisation procedures.
The full version of this landmark is written by Rosie Harding.
Ezgi Tascioglu, ‘Exercising Your Right to Legal Capacity (Easyread)’ (Everyday Decisions, 12 May 2017) http://www.legalcapacity.org.uk/easyread/exercising-your-right-to-legal-capacity-easyread/
Ezgi Tascioglu, ‘United Nations Looks at Disabled People’s Human Rights in the UK’ (Everyday Decisions, 9 March 2017) http://www.legalcapacity.org.uk/crpd/united-nations-looks-at-disabled-peoples-human-rights-in-the-uk/
Rosie Harding, ‘What is Legal Capacity? Infographic (Easyread)’ (Everyday Decisions, 29 March 2017) http://www.legalcapacity.org.uk/everyday-decisions/what-is-legal-capacity-infographic-easyread/