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5 - Reflecting Ambiguity on the Cusp of Capacity

Published online by Cambridge University Press:  25 October 2024

Cressida Auckland
Affiliation:
London School of Economics and Political Science
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Summary

The foregoing discussion has highlighted the fundamental fragility of assessments of capacity, which hinge on a series of complex yet unavoidable clinical judgements about the person’s cognitive capacities and the origins of the beliefs or values that motivate their decision. This chapter will explore the implications of this for best interests assessments and, in particular, the extent to which due weight is currently being given to the person’s authentically held values and beliefs in the assessment of their best interests. Drawing on case law, interviews, and post-legislative scrutiny of the Mental Capacity Act, it will conclude that despite a number of empowering court decisions, the lack of direction contained in the Act on how to apply the MCA has still resulted in different weight being attributed to the agent’s wishes. Moreover, the trend towards greater empowerment has not yet trickled down to decisions being taken on the ground by doctors and care workers, which still remain characterised largely by paternalism and risk aversion. Those undertaking best interests assessments could therefore benefit from a more unified starting point and greater clarity on the factors which ought to influence the degree of weight accorded to the individual’s wishes.

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Publisher: Cambridge University Press
Print publication year: 2024

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