1. Law & Social Justice
Law M100 Dissertation
The Mental Capacity Act 2005 and ‘Best Interests’: Examining the Role and
Significance of Supported Decision-Making in the United Nations Disability
Convention.
Sophie Coates
200957201
May 2016
Word Count: 6238
Dissertation Supervisor: Dr David Horton

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Abstract
The principle of autonomy is the cornerstone in medical practice. How autonomous a decision is
depends on how genuinely the individuality of the person is taken into account. Throughout this
piece the provisions of the Mental Capacity Act 2005, which provide guidance to decide the best
course of treatment for incapacitated adults is going to be assessed, with particular focus on the
best interest test. Furthermore, the English law is going to be compared, contrasted and examined
alongside the United Nations Convention on the Rights of Persons with Disabilities; the Convention
adopts a supported decision-making process and it is a central aim of this work to explore the role
and significance this could have for the best interest’s framework under the Mental Capacity Act
2005. A conclusion will be reached by thoroughly analysing each of these instruments as to which
provides individuals lacking capacity a better opportunity to be autonomous agents.

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Contents
Abstract................................................................................................................................................... 2
Introduction............................................................................................................................................. 4
Chapter 1- The Mental CapacityAct 2005 ..................................................................................................5
Functional test of incapacity within the Act............................................................................................ 5
The role of bestinterests decision-making.............................................................................................. 7
Chapter 2-United Nations Convention on the Rights of Persons with Disabilities........................................ 10
Equal recognition before the law underArticle 12 ................................................................................ 10
Supported decision-making within the Convention............................................................................... 11
Models of supported decision-making.................................................................................................. 12
Chapter 3- Ethical implications of a supported decision-making regime..................................................... 14
Supported decision-making and philosophical theories......................................................................... 14
Ethical challenges to the approach of supported decision-making.......................................................... 15
The termincapacity in Englishlaw and compatibility with the Convention ............................................. 16
Conclusion ............................................................................................................................................. 19
Bibliography........................................................................................................................................... 20

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Introduction
Approximately one in six adults, in Britain, are affected by mental illness at least once in their life.
There are many misconceptions about those who are classified as mentally ill amongst society, an
example is that the mentally ill are perceived the deserted objects of society1. Section 1(2) Mental
Health Act2, gives guidance that a disorder is ‘any disorder or disability of the mind’ encompassing a
broad range of conditions. The law currently employs mental capacity to define the line between
legally effective and legally ineffective decisions3, therefore it can be questioned if the law provides
scope for those without capacity to be autonomous agents. Autonomy as a philosophical concept
has been at the heart of medical ethics, meaning that medical practitioners are obliged to
emphatically engage with a patient’s experience. Academic literature has considered the extent to
which those classified as having a mental disorder have the required capacity to make autonomous
decisions regarding medical treatment. Throughout this piece of work the Mental Capacity Act4
(MCA) will be analysed with particular focus on how the Act determines incapacity and the
application of the best interest test. The law will be examined, with the role and significance of the
supported decision-making process established in the United Nations Convention on the Rights of
Persons with Disabilities (CRPD) being further examined for its relevance and potential effect on the
current legal framework under the MCA5. The work will conclude by arguing that the CRPDs
supported decision-making framework can reinvigorate the best interest framework under the
MCA.
1 Peter Bartlett and Ralph Sandland ‘Mental Health Law: Policy and Practice’ (4th Edition,Oxford Press,2013)
2 Mental Health Act 1983,s1(2)
3 Genevra Richardson ‘Mental Disabilities and thelawfrom Substitute to Supported Decision Making’[2012] CLP 333
4 Mental Capacity Act 2005 (MCA), s4
5 UN General Assembly, Convention on the Rights of Persons with Disabilities : resolution / adopted by the General
Assembly (24th January 2007) (CRPD)

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Chapter 1- The Mental Capacity Act 2005
The MCA was introduced in 2005, which is vitally important piece of legislation for those lacking
capacity as the Act is intended to ‘empower’ adults with mental disorders6. Scholars, have widely
celebrated the Act as promoting the bioethical principle of autonomy7. Nevertheless, the Act draws
a distinction between those with and without capacity, which causes difficulties in practice to apply.
Indeed, McFarlane commented in PC v York CC that ‘the provisions of the MCA are to be applied
with clarity and care in order to ensure the autonomy of the individual is not eroded by the court’8.
However, it can be questioned whether patient autonomy is provided throughout the Act. This is
due to individuals lacking capacity, being susceptible to the best interest test where decision-
making is largely substituted to a medical practitioner. An argument can be made that the law goes
too far in restricting those with disabilities to make an autonomous decision. Before exploring this
issue, the first chapter will analyse the key provisions within the MCA, relating to those deemed not
to have capacity.
Functional test of incapacity within the Act
Section 1(2)9 of the Act grants, ‘a person must be assumed to have capacity’ to consent to
treatment, reflecting a right to make a decision is at the heart of the Act. Justice Dame Butler-Sloss
argues that ‘the concepts inherent in this right [to make decisions] are the bedrock upon which the
principles of self-determination and individual autonomy are based. Free individual choice in
matters affecting this right should, in my opinion, be afforded high priority10. Medical practitioners
are adhered to exercising a functional test when capacity is in doubt, in order to assess whether the
impairment or disturbance in the functioning of the mind or brain11 can cause an inability to make
decisions. Research has found practitioners often find it difficult interpreting this part of the Act12.
The Act confers that a person is unable to make a decision for himself he is unable-
6 Code of Practice2013,[1.4]
7 See GeraldineBoyle, ‘Autonomy in long-term carea need or a luxury?’[2008] Disability & Society Journal 304
8 [2013] EWCA 478 (Civ) [51]
9 MCA, s1(2)
10 Re T (Adult: Refusal of Treatment) [1992] 3 WLR 782 [116], [117]
11 MCA, s2(1)
12 Val Williams etal, ‘MakingBest Interest Decisions:Peopleand Processes’(2012) Mental Health Foundation
<http://www.mentalhealth.org.uk/publications/bids-report> accessed 29/02/2016

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(a) to understand the information relevant to the decision13,
(b) retain that information14,
(c) use and weigh that information or15
(d) to communicate the decision16.
Prior to the MCA, the functional test was discussed in Re C (Adult Refusal of Treatment)17, which
involved a schizophrenic patient. Assumingly a standard person would believe a patient suffering
from distortions of reality would not understand information given to them about a course of
treatment. Nonetheless, Thorpe J held that although his general capacity was impaired by
schizophrenia he still sufficiently understood the purpose and effect of the treatment he was
refusing. While the decision triumphs in promoting patient autonomy, a contrast can be made with
Re MB18, where a nurse was found to be incompetent to consent to a c-section due to her decision-
making ability being overwhelmed by a phobia of needles. The disparities in each of the judgments
exemplifies the subjectivity of the test which leads to uncertainty of whom will be deemed as
incapacitated. Questions can be raised of how the courts can find a man with a long term mental
illness to have capacity and a competent woman with a temporary phobia not to have capacity and
for such decisions to be ethical in the eyes of the law. Mackenzie and Rodgers have been critical of
what they refer to as the cognitive nature of the provision to determine incapacity. They have
argued that in order to effectively promote the autonomy of persons whose capacities are
impaired, doctors must go beyond the primarily cognitive approach to the capacity assessment and
refer to a range of autonomy conditions such as authenticity, diachronic coherence and
consistency19.
In cases involving patients with anorexia, using and weighing information is a dominant factor in
determining capacity. Re E20 concerned the force-feeding of a patient against her wishes. The
patient was considered as ‘intelligent and articulate’21, however, the characteristics of her condition
13 MCA, s3(1)(a)
14 MCA, s3(1)(b)
15 MCA, s3(1)(c)
16 MCA, s3(1)(d)
17 [1994] 1 WLR 290
18 Re MB (An Adult: Medical Treatment) [1997] 2 FLR 426
19 Catronia Mackenzieand Wendy Rodgers, ‘Autonomy, vulnerability and capacity:a philosophical appraisal of the
MCA’ [2013] Int. J.L.C 37
20 Re E (Medical Treatment: Anorexia) [2012] EWHC 1639 (CoP)
21 ibid, [5]

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restricted her to adequately weigh the advantages of eating over her overwhelming fear of weight
gain. Therefore, it was lawful for the local authority to force-feed her against her requests.
However, the ruling is not free from criticismof restricting the patient’s autonomy. The court
acknowledged her parents argument that ‘it seems strange the only people who do not have the
right to die when there is no further appropriate treatment available is those with an eating
disorder… there is a logic in this but not from the perspective of the sufferer who is not extended to
the same rights as any other person’22. Furthermore, anorexic patients find themselves in a catch
22 situation23, namely that deciding not to eat means that they have no capacity at all despite,
maintaining characteristics as those with capacity. One could argue the law currently goes too far in
depriving those with anorexia of the right to an autonomous choice.
The role of best interests decision-making
Although the legal framework of how the law reaches a diagnosis of incapacity is important, this
dissertations objective is to analyse how the law currently deals with how to make decisions for
those lacking capacity. Prior to the MCA, Lord Donaldson in Re T (Adult Refusal of Treatment) first
brought the concept of best interest decision-making to the courts which adopts a ‘substituted
decision-making’ process, which involves a decision regarding medical treatment, being made by
someone other than whom the treatment concerns based on the premise of their best interests24.
He advocated that although every adult had the prima facie right to irrationally refuse treatment, if
they did not have the mental capacity, doctors could exercise their clinical judgment and act within
the best interest of the patient25.
The best interest decision-making mechanism is incorporated into the MCA under section 426. Re A
is a paramount decision which provides a sophisticated conception of best interest decision-
making. It was held in the case that sterilisation of a mentally incapacitated patient on non-
therapeutic grounds could only be carried out if it was in the best interests of the patient. Butler-
Sloss P confirmed that best interests ‘encompasses medical, emotional and all other welfare
issues’27. The case is of significance because it saw the Court of Appeal particularly, LJ Thorpe move
22 supra n20 [52]
23 ibid, [53]
24 Committee on the Rights of Persons with Disabilities, General Comment on Article 12: Equal recognition before the
law (April 2014) [23]
25 [1992] 4 All ER 649 [664]
26 MCA, s4
27 Re A (Medical Treatment: Male Sterilisation) [2000] 1 FLR 549 [200]

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towards a systematic approach to the assessment of best interests. Thorpe advocated for a balance
sheet approach stating that ‘the first entry should be of any factor or actual benefit… then on the
other sheet the judge should write any counter balancing dis-benefit to the applicant’28. Since the
case, the balance sheet approach has been formalised a Practice Direction which noted that the
court should assess in percentage terms the likelihood of the advantages and disadvantages of the
treatment, highlighting the level of complexity incorporated in the test29.
The standard that medical practitioners are adhered to when carrying out the assessment of best
interests stems from the iconic judgment from McNair J who held, a doctor is ‘not guilty of
negligence if he has acted in accordance with a practice accepted as proper by a responsible of
medical men skilled in that particular art’30. Commentators have sparked concern for adopting
Bolam in the medical ethics context rather that keeping it relevant to the law of tort. Davies has
eloquently argued that the dominant judicial approach in medical law has become ‘[w]hen in doubt
‘Bolamise’’ and that the legality of treatment of mentally incapacitated patients has been hustled
into the Bolam straightjacket’31 rather than taking into other factors such as whether the patient
can be supported into making the correct decision for themselves. Nonetheless, the Bolamtest has
been confirmed in Re F32 which marked the Bolamisation of the lawfulness of medical treatment of
adults incapable of consenting on their own behalf.
The Act includes guidelines of what practitioners are to consider before coming to conclusions as to
what treatment to take, which is a restriction of professionals making an absolute decision. The
section which is most relevant to this dissertations objective is Section 4(4) which states the person
making the determination must ‘so far as reasonably practicable permit and encourage the person
to participate, or to improve his ability to participate, as fully as possible in any act done for him
and any decision affecting him33. Furthermore, section 4(6)34 of the Act gives guidance to the
factors which a medical practitioner should consider when exercising an assessment of a patients
best interests. The participative approach under section 4(4) has been appraised by Donnelly. She
argues that this approach is closely in line with the CRPD, due to the provision recognising the
28 ibid [13]
29 Practice Direction (Declaratory Proceedings: Incapacitated Adults) [2002] 1 W.L.R. 325 [7]
30 Bolam v Friern Hospital Management Committee [1957] I W.L.R 582 [587]
31 M. Davies,‘The ‘New Bolam’ Another FalseDawn for Medical Negligence’ [1996] 10
32 Re F (Mental Patient Sterilization) [1990] 2 AC 1
33 MCA, s4(4)
34 MCA, s4(6)

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contribution to be made by the person lacking capacity and promoting autonomy of incapacitated
individuals. However, the argument can be made because the MCA keeps faith with best interest
standard being enforced by doctors, there will be difficulties in giving full effect to the participative
framework set out in section 4(4)35.
Despite the participative approach discussed the connotation the ‘physician knows best’ is still
dominant in English medical law and at the heart of the Hippocratic Oath. Evidently, it is still down
to medical practitioners to make the ultimate decision regarding patient’s treatment. Furthermore,
the section 4(4) still carries the risk that the physician will invent or interpret their patient’s wishes
in a way which accords with their own view36. Veatch is critical of the amount of discretion afforded
as it is impossible for physicians to know what actions on their part will truly benefit their patient37.
Arguably, this is a valid proposition as nobody has the ability to mind read. Therefore, doctors
cannot give an infinite answer as to what is in a patients best interests particularly when they have
a disability, they should merely be there for support. Furthermore, arguably dangers lurk in
attempting to collapse respect for autonomy into a concern of a patients best interests. This is
dangerous particularly if what a patient would choose is understood solely in terms of what is good
for them, here the spectre of paternalism appears to loom. A further probing concern with
substituted decision-making is that practitioners may not be adequately trained in carrying out such
assessments of best interests. For example, investigations by the Care Quality Commission found
that in twenty-nine out of thirty-five care homes inspected failed to properly apply elements of the
MCA and found that staff who had been trained in exercising the best interest test under the Act
where still lacking awareness of the legislation38.
Therefore, it needs to be evaluated whether the supported decision model in the CRPD offers a
useful insight in the ways in which decision-making can be alleviated from medical professionals
and the way in which the law can be reformed to build on the boundaries of section(4)(4) in
adopting a more autonomy focused regime.
35 Mary Donnelly,‘Best Interests, Patient Participation and theMental Capacity Act 2005’ [2009] MLR 1
36 Rebecca Dresser, ‘MissingPersons:Legal Perceptions of Incompetent Patients’[1994] RLR 666 - this was also evident
in pre-act caselaw- Re X (Adult Sterilisation) [1998] 2 F.L.R 1124
37 Robert M Veatch, ‘Doctor Does Not Know Best: Why in the New Century PhysiciansMustStop Trying to Benefit
Patients’[2000] Journal of Medicine and Philosophy 701
38 Andy McNicholl,‘Mental Capacity Act FailingsProminentatMost ‘Inadequate’ Rated Care Providers (2015)
<www.communitycare.co.uk/2015/01/22/mental-capacity-act-failings-prominent-inadequate-rated-care-providers>
accessed 05/03/2016

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Chapter 2-United Nations Convention on the Rights of Persons with
Disabilities
The UN International Year of Disabled people in 1981 was followed by a ten year action programme
which concerned the right to equality and participation in social life of disabled people. Academic
Bistro has observed that ‘most problems experienced by people with disabilities stemfrom the
perception that they are not fully human and people with disabilities have been excluded from the
human franchise’39. The Convention was enforced in 2008 and although the issue of what
constitutes a disability is beyond the scope of this work, it is useful to set out this legal definition in
order to understand the context in which the Convention operates and its relationship with the
MCA. The CRPD does not provide a comprehensive definition of disability but states a person with a
disability includes those who have long-term physical, mental, intellectual or sensory
impairments40. Although the a distinction can be made between those lacking capacity and those
with a disability the reason for drawing up on this convention for the purposes of this work is, the
Convention grants those with disabilities equal recognition before the law and represents a move
forward to a participatory approach of decision-making41. The non-discriminatory principles that
underpin the Convention can largely be contrasted to those of the MCA. This is because the MCA
easily subjects those lacking capacity to the best interest test, as those meeting the diagnostic test
would probably be classed as disabled. Thus, leading to the conclusion that their role in the
decision-making process is discriminated against on the basis of their disability. Immediately we can
appreciate the relationship between the MCA and the Convention with the later providing an extra
layer of protection for those with disabilities.
Equal recognition before the law under Article 12
Relevant to decision-making capacity, Article 12 CRPD42, ensures that all persons regardless of their
disability which encroaches on their decision-making capacity, are recognised as equal before the
law. The Convention is broad ranging, for the purposes of precision some of the key provisions
relate to: the right of recognition before the law, access to support and safeguards against abuse.
39 M.Bistro, International Disability Rights Monitor <http://www.idrmnet.org> accessed 10.03.2016
40 supra, n5
41 Tara Melish,‘The UN Disability Convention: History,Process,Strong Prospects and Why the U.S Should Rectify’ (2007)
14 Human Rights Brief 37
42 CRPD, article12

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Article 12 is the most recent exploitation of the ongoing debate on the context and application of
human rights law, surrounding the evolving understandings of legal capacity. In recent years, there
has been a surge of support for the notion that almost every human person is capable of exercising
their will. Jennings supplements this view in suggesting that there should be a holistic and inclusive
notion of personhood that is not founded upon a person’s cognition and capabilities43. Also,
Minkowitz maintains that realising ‘universal legal capacity in accordance with Article 12 is
purported to produce a number of benefits including the promotion of personal autonomy,
authority and control of people over their own lives44. Article 12 is significant as it provides an
insight of how decision-making under the MCA can be reformulated into a more autonomous
abiding supported decision-making model, like that of the Convention. However, a thorough
assessment of the elements of the Article needs to be carried out to examine whether a supported
decision-making model will in fact promote autonomous decision making for those with a disability.
Supported decision-making within the Convention
Article 12(3) of the CRPD introduces an obligation on states parties to ‘take appropriate measures
to provide access by persons with disabilities the support they may require in exercising their legal
capacity’. Even though, this is very much like the wording of section 4(4) MCA it can be assumed
more willing to incorporate those with disabilities into the decision-making process due to the
overarching aim of the Convention is not to discriminate against those with impairments. However,
Article 12(3) does not make an explicit reference to prohibiting substituted decision-making
models, whereby a decision is made on the premise of the best interests of the person when they
are lacking capacity45. The CRPD Committee has urged that support systems for the exercise of legal
capacity must replace regimes of substituted decision-making that deny legal capacity46, like the
best interest test under the MCA. More so, the Convention makes no clear reference to exactly
what is meant by supported decision-making, nevertheless, the Convention Committee has been
helpful in clarifying a number of core interpretative issues. For example, in the General Comment
on Article 12 CRPD the Committee clarifies that ‘support in the exercise of legal capacity must
respect the rights, will and preferences of persons with disabilities’ and that ‘support’ is a broad
43 Bruce Jennings, ‘Agency and Moral Relationship in Dementia’in E.F Kittay and L.Carson (eds) Cognitive Disability and
its Challenge to Moral Philosophy (Wiley-Blackwell Publishers,2010)
44 Tina Minkowitz, ‘The United Nations Convention on the Rights of Persons with Disabilities and theRight to be Free
from Non-Consensual Psychiatric Interventions’[2007] Sy.J.In 405
45 supra, n24
46 Committee on the Rights of Persons with Disabilities, Consideration of reports submitted by States parties under
article 35 of the Convention: Concluding observations (April 11th 2011)

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term that encompasses both informal and formal support arrangement, of varying types and
intensity’47. An example, previously discussed is the best interest model in the MCA which obliges
medical practitioners to take into account a variation of factors before concluding on what decision
to make for their patient. Furthermore, scholars, Kohn and Blumenthal have defined the process as
one by which a third party assists or helps an individual with an intellectual or cognitive disability to
make a legally enforceable decision48. Comments have been made that the term supported
decision-making regime causes confusion by giving the impression that the CRPD committee
interprets Article 12 to preclude some decisions being ‘made for a person’. Conversely, many
academics have welcomed the supported decision process by suggesting that Article 12 demands
that the law respects a person’s decision, however, disabled that person’s mental health powers
might be49, therefore promoting autonomous decision making for all in the eyes of the law.
Models of supported decision-making
As noted above, the Convention does not give an explicit reference as to what accumulates a
supported decision-making model, it is therefore prescient to engage the literature on this area and
distil a conceptual framework upon which supported decision-making can be understood Bach and
Kerzner produces a conceptual framework model of supported decision-making which shows the
variation in the types of support that an individual may require, depending on the severity of their
disability. The model is based on a minimum threshold criteria which suggests a person, for
example a doctor, is to act in a way that at least one other person who has personal knowledge of
an individual can reasonably ascribe to ones actions and communicate abilities to that effect. Bach
and Kerzner propose that capacity can be exercised in different ways dependent on two key
factors. Firstly, whether or not a person’s particular decision-making abilities means that they need
another person to help communicate and express their will and preference and secondly, whether
or not a person meets the minimum threshold where at least one person can understand the
persons will and communicate that to others for the decision making process50. From this, Bach and
Kerzner propose the following statuses of decision-making; legally independent, supported and
facilitated decision-making. Although each of the statuses assume that a person has the will and/or
47 supra, n24 [5]
48 Nina.A Kohn and Jeremy. A Blumenthal ‘A Critical Assessmentof Supported Decision for Persons Aging with
Intellectual Disabilities’[2013] Disability and Health Journal 40
49 Genevra Richardson ‘Capacity in the shadowof suicide:Whatcan the lawdo?’ [2013] Int.J.L.C 87
50 Michael Bach and Lana Kerzner ‘A New Paradigm for Protecting Patient Autonomy and the Right to Legal Capacity’ A
Report Prepared for the Law Commission of Ontario (2010) <www.lco-cdo.org/disabilities/bach-kerzner.pdf>accessed
21/03/2016>

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intention to guide their decision-making which is compliant with the CRPD, which status an
individual falls under depends on their level of legal capacity. Arguably, this falls foul of the
Conventions ideology of equal recognition before the law and may encounter similar problems like
the MCA regarding decision-making. Nonetheless, jurisdictions such as Canada have adopted a
supported decision-making model, prior to the convention, exemplifying Bach and Kerzners theory
in practice. Section 6(1) of the Vulnerable Persons Living With Disability Act 1993 which states
supported decision making" refers to the process whereby a vulnerable person is enabled to make
and communicate decisions with respect to personal care or his or her property and in which
advice, support or assistance is provided to the vulnerable person by members of his or her support
network’51. Exemplifying in Canada the decision regarding treatment has to be based upon the
patients will and preference rather than what is perceived to be in their best interests.
In conclusion, arguably the support for those with disabilities what the CRPD offers appears to place
individuals in a position of equal recognition before the law. This can be starkly contrasted with the
position in English law, whereby a decisions made in the patients best interests, most commonly by
a medical practitioner. The supported-decision making model can potentially alleviate the problem
of treating individuals differently on the basis of their disability which is the key concern with the
diagnostic test, in the MCA. However, this discussion can be developed by analysing whether the
CRPD model is ethically sound and if so can the approach ever be integrated into the MCA.
51 VulnerablePersons LivingWith Disability Act 1993,s6(1)

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Chapter 3- Ethical implications of a supported decision-making regime
On the passing of the CRPD, Kofi Annan outgoing secretary general advocated that ‘for 650 million
persons around the world living with disabilities, today promises to be a dawn of a new era where
disabled people will no longer be subject to discriminatory practices52. Scholar, Anna Lawson
although echoing this view is not naive to the fact that in order for those rights to be properly
established there is a requirement that all states implement guidelines reflecting that of the
Convention53. Ten years since the passing of the Disability Convention, the UK still adopts a
decision-making process where the ultimate decision-maker is the medical professional, despite
having to consider the best interest guidelines under Section 4 MCA54. From previous analyses, an
inference can be made that the Convention provides a better opportunity to have an equal
standing in the decision-making process despite the limitations of a disability. However, it can be
questioned whether a supported decision-making model can ever be compatible within the MCA
and whether ethically substituted decision-making may be more fit for purpose.
Supported decision-making and philosophical theories
Personal autonomy is a fundamental principle in bioethics literature, which has been developed
through the philosophy of Kant. Kant’s idea of this concept consists of self-enacted principles which
involve governing yourself in the pursuit of your own conception of the good and does not involve a
constrained choice55. On the other hand, Utilitarian John Stuart Mill is concerned with liberty. In
Mills text On Liberty, the first principle notes is that each individual should possess the ‘liberty of
thought and feeling and freedom of opinion’56 and considers the individual as sovereign in the
decision-making process. Although there are differences between the two philosophers work the
importance of incorporating each into this work is the theories give an indication of what can be
considered as a free choice and how it can apply to each decision-making framework; the MCA and
the CRPD. Applying the ethics in light of the Convention, the first provision to safeguard respect for
52 Kofi Annan, United Nations Secretary-General, On the occasion of the passage of the UNCRPD, (13th December 2006)
<http://www.un.org/news/press/docs//2006/sgsm10797.doc.htm> accessed 10/04/2016
53 Anna Lawson, ‘United Nations Convention on the Rights of Persons with Disabilities:New Era or FalseDawn?’ [2007]
Sy.J.In 619
54 supra, n26
55 Marilyn Friedman,‘Autonomy and the Split-Level Self’ [1986] SJP 20
56 J.S Mill,‘On Liberty and other writings’ Stefan Collini eds (CambridgeUniversity Press,1989)

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inherent dignity, individual autonomy and freedom to make own choices57 appears to replicate the
ideology of Kants theory of personal autonomy and provide liberty for those with disabilities.
However, difficulties arise in using the Mills theory to provide those with incapacity with liberty as it
is explained the doctrine ‘is meant to apply only to human being in the maturity of their faculties.
We are not speaking to children… we may leave out of consideration those backward states of
society, in which the race itself may be considered as non-age’58. Suggesting that Mill is excluding
individuals lacking capacity. Devi sophisticatedly counter interprets this by proposing that Mill could
have used children as a cut-off point due to their age rather than their ability to make a decision.
The use of the word ‘non-age’ could also apply to those with disabilities. This could suggest those
with mental incapability’s need to be heavily guided59, in the decision-making process rather than
their right to make a decision being abolished. This is where the third model, facilitated decision-
making, by Bach and Kerzner comes into play. This essentially is a form of coercive paternalism
(overbearing restriction on freedom of choice), which Conly states is justified as it is rather
challenging to understand the wishes and intentions of persons with profound disabilities60. This
model broadens the boundaries of supported decision-making and it can be questioned whether
the approach within the MCA is more closely related than it appears on the surface.
Ethical challenges to the approach of supported decision-making
Although supported decision-making can be viewed as enshrining those with disabilities the right to
autonomy and liberty. Which can be contrasted with the paternalistic English best interest decision-
making model which Mill opposes as thwarting the freedom of choice. The Conventions stance on
decision-making is not without criticismand there is a consensus that the substituted decision-
making may be better suited as a tool of solving ‘hard cases’.
Hard cases include situations where an individual is none or minimally communicative or the will of
the patient is unclear of conflicting, best demonstrated in anorexic patients61. A proposition can be
made that giving a patient guidance in the decision-making process would only be a beneficial
mechanism if the patient was to be equipped with well-developed communication skills. However,
57 ibid, [13]
58 supra n56, [61]
59 Nandini Devi,‘Supported Decision-Makingand Personal Autonomy for Persons with Intellectual Disabilities:Article12
United Nations Convention on the Rights of Persons with Disabilities’[2013] JLME 792
60 Sarah Conly,‘Against autonomy justifyingcoercivepaternalism’(New York: Cambridge University Press 2013) 16
61 supra, n20

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Article 12 CRPD does not draw a distinction between disabilities with varying levels of
communication and applies to all people, which leaves significant ethical implications. Arguably, the
participatory element of the CRPD, may be far from straightforward since contrary to the implicit
hypothesis in the social model; disabled people with different impairments may not share exactly
the same vision of inclusion and may have different hierarchies of priorities62. Therefore, the
Convention attempting to implement a standardised framework which applies to each individual
despite the nature of their disability might fall short ethically. Debatably, a standardised support
network puts Mills account of liberty into jeopardy as support is not as useful to some individuals as
others due to the characteristics their disability bears upon them. For example, the supported
decision-making regime appears to be appropriate in cases involving ageing and dementia related
illness where there is a gradual decline in capacity which needs to be preserved. However, it does
not appear to have the same efficiency for cases involving those who have suffered on a long term
scale and cannot communicate due to their impairment.
Furthermore, the Conventions model fails to take into account individuals who do not have a
network around them, ironically keeping discrimination alive. Often people with severe disabilities
express behaviours which alienates family and friends, resulting in social isolation and academic
Verkerk proposes that part of their problem is that they cannot relate well with other
people63.Therefore, it would appear to come across interrogating to expect those who find
themselves socially isolated, due to the nature of their disability, to partake in discussions to aid
them in coming to a decision about which treatment to take. Furthermore, putting pressure on an
individual in such condition would potentially result in an irrational decision made impulsively due
to the stress of being placed in such a situation. Therefore, the best interest model under the MCA
can be deemed to be more ethically compatible in such situation.
The term incapacity in English law and compatibility with the Convention
The recent judgment of Wye Valley64 made it clear how far the courts have come in recognising the
dangers of using capacity as a cliff-edge of which one falls into an embrace of paternalism. Jackson J
was in line with the view of Lady Hale in Aintree which empthasised decision-makers should be
62 WilliamSherlawand Herve Hudebine, ‘The United Nations Convention on the Rights of Persons with Disabilities:
Opportunities and Tensions Within the Social Inclusion and Participation of Persons With Disabilities’[2004] European
Journal of Disability Research 9
63 Marian Verkerk ‘A Care Perspective on Coercion and Autonomy’ [1999] Bioethics 358
64 Wye Valley v Mr B [2015] EWCOP 60

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more willing to accept decisions which appear unwise65. He added the wishes and feeling of people
with mental disabilities are as important to them as everybody else66, demonstrating a shift
towards an equal recognition before the law, compatible with the Convention. The judgment also
commented that a conclusion could not be reached determining the course of treatment without
meeting Mr B himself, enshrining the participative approach in section 4(4)67 of the Act and giving
scope for supported decision-models discussed to come into play. Despite the court positively
shifting towards a more supportive model, the law is still incompliant with the Convention as the
distinction between capacity and incapacity is a fundamental area of the Act. Therefore, this poses
the question whether the concept incapacity can still be used in English medical law and be
compatible with the Convention?
Undoubtedly the question posed will be a surprise to mental health lawyers as determination of
capacity is perceived as non-discriminatory and relatively non-oppressive68. However, Sabrine
Michalowski argues a status based capacity test is already discriminatory69 against those with
disabilities. However, Bartlett advocates an argument that using incapacity as a concept, in English
law may be compatible with the Convention as long as it is sufficiently divorced from the concept of
disability. This would require significant alterations to the MCA due to the Act defining ‘incapacity
as inability to make a decision ‘because of an impairment of, or a disturbance in the functioning of
the brain or mind’70 which is arguably directly related to the presence of a disability71. The
discussion in chapter 1 emphasises that the diagnostic test in the Act is confusing and incapable of
creating a true representation of disabled people’s preference. Therefore, it can be argued that
abandonment of this threshold would not necessarily pose insurmountable problems. On the other
hand, it can be questioned whether the UK adopting the use of incapacity is truly discriminatory of
those with mental incapability’s like sceptic advocates have claimed. Kayess and French note that a
failure to acknowledge, like the CRPD, the difference between those with and without disabilities,
65 Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67 [24]
66 supra n65, [11]
67 supra n33
68 John Dawson and George Szmukler, ‘Fusion of mental health and incapacity legislation’[2006] BMJ504
69 SabrineMichalowski,‘Is the MCAs Diagnostic testto assess mental capacity compatible with the UNCRPD?’ [2014]
<www.autonomy.essex.ac.uk/wp-content/uploads/2014/06/1-briefing-paper-one-FINAL.pdf> accessed 11/05/2016
70 MCA, s2(2)
71 Peter Bartlett, ‘The United Nations Convention on the Rights of Persons with Disabilitiesand Mental Health Law’
[2012] MLR 752

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leads merely to superficial equality , and are therefore, critical of Article 12 which ‘boarders on a
complete denial of the instrumental limitations associated with cognitive impairments’72.
72 Rosemary Kayess and Phillip French,‘Out of darkness into light? Introducingthe Convention on the Rights of Persons
with Disabilities’[2008] HR.L.Rev 1

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Conclusion
Throughout this work an analysis of the current best interest test in English law has been drawn
and compared with the supported decision-making model in the CRPD. The key difference between
the two legal mechanisms is the granting of equal recognition before the law and in decision-
making that the CRPD offers. Supported decision-making in the Convention would add a number of
benefits to the participatory approach that section 4(4) 73 MCA already attempts to offer. Firstly, by
granting support to those lacking capacity rather than mere encouragement to participate in the
decision-making process exemplifies doctors really valuing their patient’s views despite their
disabilities. More so, ensuring a patient has support alleviates the risks of doctors second guessing
what is in their best interest. Despite the benefits, caution will have to be taken in order to
determine if patients feel comfortable in participating in the supported decision process, this is
particularly true in terms of patients whose disability restricts their communication and
relationships with others. Although incorporating the Convention into the MCA would require a
significant amount of changes, the House of Lords Select Committee has commented that it would
not be prudent for specific recommendations to be made about legislative changes that may be
necessary in order to implement the model of the Convention adequately74. Furthermore, recent
case law has seen a shift in the courts adopting a more supported decision-making stance which
could incorporate a more autonomy compatible system within the MCA in the foreseeable future.
73 supra, n34
74 HOL Select Committee, Mental Capacity Act 2005:Post Legislative Scrutiny (2013-14) Paper 139

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