Capacity, character and supported decision-making

by Jillian Craigie

Legal regimes that use assessments of mental capacity to decide whether a patient retains the right to make their own treatment decisions, assume that tests of incapacity enable clinicians to distinguish between, (i) decisions that are properly explained in terms of an incapacity due to psychopathology; and (ii) decisions that should be explained in terms of the person’s idiosyncratic character and commitments.

The UN Convention on the Rights of Persons with Disabilities (2006) prescribes a significant shift in medical law, through the delinking of legal capacity and mental capacity, and the implementation of supported decision-making regimes.

In this presentation I consider whether this shift would avoid the problem of distinguishing decisions that are the expression of an illness, from those that reflect a genuine personal preference.