This chapter explores how the operation of the Mental Capacity Act 2008 is influenced by the sociocultural environment in Singapore, and subsequently how the prevailing attitudes and cultural milieu of the local populace have shaped the interactions between P, P’s caregivers and the legal system – specifically the extent of P’s participation in proceedings. The author attempts to explore methodically by first setting out the relevant legal provisions followed by the analysis of case judgments and a discussion on current legal barriers to P’s participation in proceedings. The impact of culture milieu, through the influence of Asian values and religious views, is further explored under the theme of surrogate decision-making for P in Singapore. This chapter concludes by considering ways to further advance and support P in the decision-making process in light of the finding of a culture of surrogate decision-making in Singapore.
This chapter examines the history of guardianship in Australia and the role of values and participation in Australian guardianship laws. The chapter postulates that there are three generations of Australian guardianship laws, the most recent of which is specifically designed around the Convention on the Rights of Persons with Disabilities. The implementation of that convention has been haphazard, but the chapter argues that guardianship authorities have, in the absence of clear legislative adoption, created policy frameworks that incorporate and promote the will and preferences of the person under guardianship. This suggests that in Australia policies and guidelines are as important as formal laws for ensuring that the will and preference of people with disabilities are given paramountcy in decision making.
With contributions from an international team of experts, this collection provides a much-needed international, comparative approach to mental capacity law.
The book focuses particularly on exploring substantive commonalities and divergences in normative orientation and practical application embedded in different legal frameworks. It draws together contributions from eleven different jurisdictions across Europe, Asia and the UK and explores what productive or unproductive values and practices currently exist.
By providing a detailed comparison of how legal and ethical commitments to persons with disabilities are framed in capacity law across different national systems, the book highlights the values and practices that could lead to changes that better respect persons with disabilities in mental capacity regimes.
This chapter focuses on the development and implementation of capacity-based law in Northern Ireland. The Mental Capacity Act (Northern Ireland) 2016, when it is fully implemented, will provide a capacity-based framework for decision making and will replace the current mental health law for everyone aged 16 and over. The chapter explores aspects of the Northern Ireland context that may have contributed to this approach being taken. It considers how participation and values influenced and informed the development of the Act and how they are promoted in the contents of the Act. The chapter also identifies some of the ongoing debates about this new approach, including the exclusion of those aged under 16 and some of the complex interfaces with criminal justice issues. The need to evaluate whether the new Act is effective in achieving its aim of more effectively promoting and protecting the rights of everyone whose ability to make decisions may be impaired is also highlighted.
Indigenous peoples with disabilities are extremely vulnerable when interacting with Canadian mental capacity law. They are disproportionately at risk of experiencing barriers to accessing justice, undermining their cultural values and Charter-protected rights of autonomy, medical self-determination and equality. There is a dearth of research addressing the values underlying supported decision-making and substitute decision-making for Indigenous communities in Canada. This chapter analyses the legal framing of mental capacity in Canada and the values and principles that are relevant for Indigenous peoples in Canada. I highlight the significant perspectives of Indigenous peoples in the framing of capacity and the types of intersectional barriers they experience accessing equitable decision-making processes in capacity law. The analysis reveals how Indigenous peoples with disabilities are isolated and denied autonomy. Their participation is curtailed as a result of lack of access to culturally appropriate treatment and systemic discrimination.
This chapter sets out the framework and rationale for Capacity, Participation and Values in Comparative Legal Perspective. We explore how core themes of values (that is, the values embedded within a legal framework and whose values are given effect) and participation (that is, whether and how the person’s voice and agency is fostered in decision making about them) establish a fruitful analytic prism through which to draw cross-jurisdictional comparisons of different mental capacity and guardianship legal regimes. Through a shared language with which to speak about capacity law we suggest that cross-jurisdictional learning and dialogue may be fostered.
In December 2015, the President of Ireland signed the Assisted Decision-Making (Capacity) Act 2015 into law. This Act may be regarded as broadly progressive; underpinned by empowerment/participative values and informed by the European Convention on Human Rights and the United Nations Convention on the Rights of Persons with Disabilities. However, the substantive aspects of this Act have not yet come into force (although they are expected to do so in 2023). In the period between enactment and commencement, the applicable legislation has continued to be the Lunacy Regulation (Ireland) Act 1871, which provides for the wardship jurisdiction. This chapter explores how judicial responses to capacity impairments have developed during this time of transition. The chapter shows the potential for evolution in judicial values even within a system as restrictive as wardship. This exploration also reveals some of the aspects of judging needed for a successful transition to the new legislative regime.
The Mental Capacity Act 2005 provides the statutory framework in England and Wales for making decisions about whether a person (‘P’) lacks capacity to make a decision and, if so, what decision should be made on their behalf. By virtue of the nature of decisions made, the governing legal framework and its application on the ground will never (and can) never be value neutral. This chapter explores the core values inherent within the Act’s architecture (for example, non-discrimination, maximising P’s individuality and autonomy, supporting P’s capacitous decision-making, ensuring P’s engagement and involvement in decision making and consultation and collaboration) and examines two fundamental overarching questions: (1) how values have been positively and negatively applied in practice by the Court of Protection and legal practitioners; and (2) what further steps need to be taken to improve ethical practices towards persons at the centre of decision making.
The Adults with Incapacity (Scotland) Act 2000 (AWIA) and Mental Health (Care and Treatment) (Scotland) Act 2003 (MHA) authorise and regulate the use of the non-consensual interventions relating to persons with mental disabilities. The principles that underpin the operation of both Acts reinforce the need to respect individual autonomy and restrict this only where absolutely necessary for the benefit of the person concerned. However, the Convention on the Rights of Persons with Disabilities, together with perceptions of persons with lived experience of mental disability and their families that the legislation is not always meeting their needs, have called into question the continuing efficacy of the values that underpin the AWIA and MHA. This chapter will therefore consider the extent to which the AWIA and MHA currently allow persons with mental disabilities to participate in decisions about their health, welfare and property in such a way that reflects their values.
This chapter sets out briefly the constitutional framework in Aotearoa New Zealand and the growth from common law roots of a legal system which has begun to accommodate the values of Māori. As part of doing this, legislation increasingly makes express reference to values. The development of this from the main legislation relating to capacity, the Protection of Personal and Property Rights Act 1988, through legislation in 1992 and 2003 relating to mental health and intellectual disability respectively, and to the Substance Addiction (Compulsory Assessment and Treatment) Act 2017, is traced. The 1988 statute has limited references to values, but there are implicit values, which are made more express in the 1992 and 2003 legislation, and are a significant feature of the 2017 legislation. What has grown in particular is the need to take account of cultural values, which may differ as between those from South Pacific families and those from a European background.