1.1 A Cliff-Edge Approach to Capacity

In law, a bright line is drawn between those who are deemed to have the capacity to make a decision and those who are not. For those found to have capacity (or, more accurately, those not found to lack it, given the law’s starting point is that people are presumed to have capacityFootnote ¹), that decision is determined by their autonomous choices. Consent must be sought for any treatment or care intervention, and the agent’s right to bodily integrity permits them to refuse any treatment, regardless of whether the reasons are ‘rational, irrational, unknown or even non-existent’,Footnote ² and even where the refusal will result in their death.Footnote ³ Treating a capacitous person without their consent will amount to a battery (a form of the tort of trespass to the person, which is committed whenever a person intentionally and directly inflicts force on anotherFootnote ⁴), as well as a breach of article 8 of the European Convention on Human Rights (ECHR), which protects the agent’s right to ‘private and family life’ and has been held to encompass both their ‘physical’ and ‘psychological’ integrity.Footnote ⁵ Public bodies, including public hospitals and courts, are obliged to act in accordance with this ConventionFootnote ⁶ and, while article 8 is qualifiedFootnote ⁷ and subject to restrictions made ‘in accordance with law’ where ‘necessary in a democratic society … for the protection of health or morals’,Footnote ⁸ in the absence of consent, any interference would not be in accordance with the law, and thus not justified by article 8(2). In extreme cases, treating a person without their consent might even amount to ‘inhuman and degrading treatment’, protected under article 3 ECHR, which has been held, for example, to apply in the context of forcible feeding.Footnote ⁹ The result is that those who have capacity within the terms of the MCA are accorded extensive powers to govern their lives according to their own values and priorities, with serious ramifications for anyone who seeks to interfere with this without the person’s consent.

This is qualified only by the courts’ powers under the Inherent Jurisdiction of the High Court, and the Mental Health Act 1983. The former, as Mr Justice Munby has explained, plugs the ‘gap’ in the MCA’s coverage, offering vital protections for vulnerable non-autonomous adults where

Although he felt it would be ‘unwise, and indeed inappropriate’Footnote ¹¹ to attempt to define all those who might fall under the jurisdiction, he has indicated that it would include a vulnerable adult who,

Crucially, as with those found to lack capacity under the MCA, the justification for intervening in such cases is that the agent’s capacity for autonomous decision-making has to some extent been undermined by the influence of others, thereby calling into question whether their decision should be upheld.

The same is not necessarily true of those who fall within the remit of the Mental Health Act (MHA), which, justified by reference to risk prevention rather than capacity, covers the detention, care, and treatment of those with a mental disorder. This permits the detention of a person for twenty-eight days for assessment, irrespective of their consent, if it can be shown that they are suffering from a ‘mental disorder of a nature or degree’ which warrants detentionFootnote ¹³ and that detention is necessary for the person’s own safety or the safety of others.Footnote ¹⁴ While detained, the person may be treated for his or her mental disorder, or for any symptom or manifestation of this, and for the first three months, the consent of the patient to this treatment is not required.Footnote ¹⁵ While a large proportion of people falling within the remit of the MHA will lack the capacity to take treatment decisions, this is not invariably the case. Evidence from Gareth Owen et al. suggests that around 86 per cent of people detained under the MHA in general adult acute inpatient units lack capacity to make decisions about their treatment (the figure is around 60 per cent for those on an acute psychiatric ward who are not detained under the MHA).Footnote ¹⁶ There will be some people detained under the Act then, who do have the capacity to consent to treatment – or, of course, to refuse it – yet they may be treated regardless.

While this would seem to be a substantial interference with rights and freedoms of at least some people with capacity, and there is good reason to question its legitimacy,Footnote ¹⁷ two points must be borne in mind. First, the MHA applies only to those with mental illness, defined as ‘any disorder or disability of the mind’.Footnote ¹⁸ It does not apply to those with alcohol or drug dependency,Footnote ¹⁹ most learning disabilities (unless associated with abnormally aggressive behaviour),Footnote ²⁰ or brain injuries or other cognitive impairments. Secondly, the MHA only permits treatments for the agent’s mental disorder, or for symptoms or manifestations of that disorder. While this has been broadly interpreted to include treatment for a physical disorder where this might affect the agent’s mental health,Footnote ²¹ it will not apply to treatment for a physical illness or condition which is not a symptom or manifestation of that mental disorder.Footnote ²² The result is that except in two categories of cases (namely, where the agent has a mental disorder and requires treatment for that disorder; and where the agent is deemed especially vulnerable and is subject to the coercion or undue influence of others), an agent’s capacitous refusal of treatment will be determinative.

For those who lack capacity, meanwhile, their decisions are not treated as legally authoritative, and a decision must instead be made on the basis of what is in their ‘best interests’.Footnote ²³ Although the term ‘best interests’ is not defined in the Act, the case law is clear that it captures ‘welfare in the widest sense, not just medical but social and psychological’.Footnote ²⁴ The Act sets out a number of relevant factors that must (or must not) be taken into account by the assessor when making this assessment. The decision cannot be made merely on the basis of the age or appearance of the person;Footnote ²⁵ the likelihood of the person regaining capacity must be consideredFootnote ²⁶ and the assessor is required to ‘permit and encourage the person to participate’ in the decision.Footnote ²⁷ They must take into account, ‘if it is practicable and appropriate to consult them’, the views of others engaged in the care of the person, or interested in their welfare.Footnote ²⁸ Importantly, the assessor must also, ‘so far as is reasonably ascertainable’, consider

1. (a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by [them] when [they] had capacity),

2. (b) the beliefs and values that would be likely to influence [their] decision if [they] had capacity, and

3. (c) the other factors that [they] would be likely to consider if [they] were able to do so.Footnote ²⁹

Finally, the assessor must also never be motivated by a desire to bring about death.Footnote ³⁰

Crucially, the framing of section 4 makes clear that none of the factors it outlines is to take priority in the best interests assessment.Footnote ³¹ It is thus left to each individual assessor to decide on the weight to be accorded to each, with the result that an individual’s wishes and feelings may frequently be outweighed by other factors, where the perceived need to protect them (or a fear of the legal consequences if the assessors fail to do so) is thought to take precedence over the desire to empower them. While the way in which the provisions are being applied will be considered in Chapter 5, suffice for now to say that the way the provision in section 4 is framed gives doctors very little incentive to make empowering decisions.

The law thus adopts a cliff-edge approach to capacity: for those safely on the clifftop, autonomy and self-determination dominate; but those who fall over the edge are powerless – someone else’s view of what is ‘best’ for them is imposed upon them. This approach has been widely criticised in the academic literature,Footnote ³² and it is not my intention to rehearse this here.Footnote ³³ It need only be said that, under the current legal framework, only those deemed to have capacity have the right to decide what will happen to them, both in the treatment and care context (which is the subject of this book), and in a range of other financial and administrative matters.

1.2 The Role of the Capacity Threshold in Defining the Limits of Legitimate State Authority

This approach to capacity reflects Enlightenment ideas about the limits of legitimate state authority, as encapsulated in John Stuart Mill’s conception of liberty.Footnote ³⁴ According to this, considerable justification is required before the state may interfere with the autonomous choices of its citizens;Footnote ³⁵ justification, in his view, is found only where the actions of an individual will cause harm to another person.Footnote ³⁶ To understand how Mill’s conception of liberty operates, it is necessary to put it in the context of his wider philosophy. In his view, ‘happiness is desirable, and the only thing desirable, as an end, all other things being desired as a means to an end.’Footnote ³⁷ As a proponent of utilitarianism, Mill argued that actions are right if they result in producing the greatest sum of human happiness. It is not therefore that people have a ‘right’ to liberty, but rather that respecting it will result in the best outcome for society and its citizens, ‘utility in the largest sense, grounded on the permanent interests of man as a progressive being’.Footnote ³⁸ Achieving happiness demands that a person be free to pursue ‘[their] own good in [their] own way’,Footnote ³⁹ providing this does not interfere with the interests of others. As Mill asserts:

For Mill, a sphere of independence from state intervention was essential for human individuality to develop. It was also necessary if people were to have the freedom to pursue those things which they enjoyed, or deemed morally appropriate, and thus was an essential part of ensuring the happiness and morality of individuals.Footnote ⁴¹ Other commentators have similarly seen respect for autonomy as important because it leads to greater well-being – although often this is intended to apply to individual ‘welfare’ rather than collective ‘happiness’ in the Millian sense. As David Molyneux observes, this might occur instrumentally and intrinsically.Footnote ⁴² Regarding the former, it is argued that respecting autonomous choice is the best way of determining what is best for the individual: as Mill explains it, individuals are best placed to make choices that are good for them.Footnote ⁴³ Others, by contrast, are often not very good at assessing what may be in someone else’s interests,Footnote ⁴⁴ inevitably facing limitations in their attempts to do so. As Kim Atkins observes, respect for autonomy is therefore

But it may also be the case that autonomy is a fundamental (or intrinsic) part of well-being. As Ronald Dworkin explains, it is essential for our fulfilment that we lead our life by our own beliefs:

In a similar vein, Will Kymlicka argues that an authentic life is one that is lived from the inside, pursuing values and objectives that the individual considers important;Footnote ⁴⁷ while Joseph Raz notes that an autonomous person’s well-being consists in ‘the successful pursuit of self-chosen goals and relationships’.Footnote ⁴⁸ John Stuart Mill further observes that the capacity to choose, and the exercise of this choice, is in itself fulfilling, enabling us to use our ‘human faculties of perception, judgement, discriminative feeling, mental activity, and even moral preference’ to come to a reasoned decision.Footnote ⁴⁹ James Griffin captures this inherent value of autonomy when he makes the point that ‘even if you convince me that, as my personal despot, you would produce more desirable consciousness for me than I do myself, I shall want to go on being my own master’.Footnote ⁵⁰ This intuition, as Jonathan Pugh observes, suggests that ‘we value autonomy for its own sake, and not just because we believe that being autonomous will lead to our attaining other prudentially valuable ends’.Footnote ⁵¹ Autonomy is thus ‘partly constitutive of (rather than merely instrumental to) well-being’.Footnote ⁵² Accordingly,

While the role of autonomy in promoting individual well-being is the most convincing rationale for why it should be respected, it should be noted that not all philosophers who advocate the importance of it regard its value as deriving from its contribution to (and constituent importance of) well-being.Footnote ⁵⁴ Molyneux draws on Darwall’s theory of demand autonomy, for example, which involves an essentially Kantian argument that there is something fundamentally important about being a person that demands our respect for the person’s autonomous choices,Footnote ⁵⁵ ‘not because the choices are respect-inducing in themselves, but because respect for choices is what one person can reasonably demand of another person’.Footnote ⁵⁶ In other words, respect for a person and their capacity for self-rule demands that we respect their autonomy, even when to do so would not promote their individual (or collective) welfare.

This, for reasons aptly explained by Jennifer Hawkins, is less compelling than explanations tied to well-being:

Hawkins is therefore right to suggest that ‘if paternalism is wrong, it must be because of how it affects those who are treated paternalistically’Footnote ⁵⁸: it imposes something onto them which does not contribute to their well-being, in the way that respect for autonomy would. But whatever one’s reasons for respecting autonomy, given the normative importance that is attached to people being free to make autonomous choices, it is widely accepted that this sphere of independence should not be too readily interfered with by the state.

One circumstance in which most accept that the state has jurisdiction to intervene, is where in exercising their autonomy, a person causes (or is likely to cause) harm to another, thereby interfering with that person’s autonomy. Mill captured it thus: ‘the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.’Footnote ⁵⁹ Of course this must be subject to qualifications. Mill himself set out a number: he differentiated harm (an action that was injurious or set back important interests of others) from ‘mere offence’ (which did not warrant protection),Footnote ⁶⁰ excluded consensual harms,Footnote ⁶¹ and reiterated that harm prevention should be seen as a necessary, but not a sufficient condition for restricting individual liberties (which will depend on a utilitarian calculation of whether the benefits of regulation outweigh its disadvantagesFootnote ⁶²). While it is not necessary to examine these in detail for the purposes of this discussion, it is clear that the law has a legitimate utilitarian goal of promoting the welfare of its citizens, such that when a person’s welfare is infringed by another, the law is sometimes justified in encroaching on the liberty of the infringer in order to prevent this from occurring.

Much more contentious, however, is the role of the state in protecting its citizens from themselves. Mill’s stance on this issue was clear: paternalistic interference of the state is not deemed acceptable where a person understands the decision they are making and is capable of freely exercising their autonomy. However, even for later liberal philosophers who have been vociferous in their objections to paternalism, intervention in self-regarding decisions is acceptable only in very limited cases, and certainly would not be accepted in the kinds of treatment and care decisions being contemplated in this book. Joseph Raz, for example, contemplates some intervention where it is necessary to protect the person from making decisions which will severely limit their future autonomy.Footnote ⁶³ While he does not set out in detail when these circumstances will arise, he notes in particular that

Regulations directed at the safety and efficacy of products or mandating the use of seat belts in cars may therefore be justifiable: they do not greatly violate the person’s autonomy, since the behaviour which they constrain is not a central purpose of the person’s reason for acting. However, a distinction can be drawn between this and, for example, a risky sport, ‘where the risk is part of the point of the activity or an inevitable by-product of its point and purpose’.Footnote ⁶⁵

It is the latter kind of choice which aligns more closely with the sorts of treatment and care decisions which are being contemplated in this book. Where an agent makes a decision to either have or to refuse treatment or care, they are usually deliberately seeking a certain outcome or, at the very least, are aware of (and accept) the risks inherent in making the choice that they do. The risks are therefore rarely unforeseeable or inadvertently taken; rather, the agent has weighed up the advantages and disadvantages of different courses of action and formed a judgement about which they would rather pursue, based on their values and priorities. To interfere with this decision would thus constitute a very large invasion of their autonomy, even more so given that imposing treatment or protective care measures on an agent will likely necessitate the infringement of either their bodily integrity or their liberty, causing potentially substantial psychological or emotional harm.Footnote ⁶⁶ Therefore, while Raz and others have taken a less robust stance against paternalism than Mill, their views do not undermine the importance attached to people being able to exercise their autonomy in decisions about their treatment and care. Indeed, elsewhere Raz explicitly distinguishes ‘decisions about the safety of pharmaceutical products’ (which are not the sort of decisions which a person ought to decide for themselves, rather than following authority), from ‘decisions about undergoing a course of medication or treatment where we may well feel that I should decide for myself, rather than be dictated to by authority’.Footnote ⁶⁷ This may be especially important when seen in the context of medical practice, where widespread paternalism provoked a powerful movement in favour of greater protections for patient autonomy in the latter part of the twentieth century.Footnote ⁶⁸ As Jos and Sander Welie explain:

Yet, crucially, this proscription against interfering with an individual’s choices does not extend to those who are incapable of autonomous decision-making. Immediately following the harm principle, Mill notes that ‘it is perhaps hardly necessary to say that this doctrine is meant to apply only to human beings in the maturity of their faculties … Those who are still in a state to require being taken care of by others must be protected against their own actions as well as against external injury’.Footnote ⁷⁰ Later this is made even more explicit: the principle of liberty has no application to people incapable of ‘free and equal discussion’,Footnote ⁷¹ those without an ‘ordinary amount of understanding’,Footnote ⁷² or to someone who is ‘a child, or delirious, or in some state of excitement or absorption incompatible with the full use of the reflecting faculty’.Footnote ⁷³ Mill also gives an example of someone about to cross a bridge that is unsafe. If there is no time to warn him, then it is acceptable to grab him and pull him back, as this does not interfere with his liberty, as liberty is only the freedom to do what one voluntarily desires, and in this instance, he does not desire to fall into the river below. If, however, he determines, with knowledge of the risk, to proceed over the bridge, we must accept his autonomous choice.Footnote ⁷⁴ While in this instance the lack of autonomy is attributable to a lack of information rather than an inherent vulnerability caused by an impairment or illness, it is demonstrative of the fact that Mill permits a degree of paternalistic interference where it does not interfere with the autonomous choices of people. Similarly, H. L. A. Hart argues that paternalism can be justified if a person’s capacity to make free and informed choices is diminished by factors such as ‘inner psychological compulsion’ or ‘pressure from others’, or where they have an inadequate appreciation of the consequences of their choices.Footnote ⁷⁵

Although neither Mill nor Hart engaged in detail with why the principle of non-interference ought not to apply to people incapable of making autonomous choices, the justification for this differential treatment lies in the reasons we have for respecting autonomy in the first place. Generally the decisions people make will reflect their values and desires, enabling them to live according to their own conception of the ‘good life’. Respecting a person’s autonomous choices is therefore most likely to maximize their welfare, both because people are best placed to determine what is good for them and because there is value in itself to governing one’s life. There will be some people, however, who are incapable of making autonomous decisions which reflect and further their priorities and goals and whose decisions may therefore not be welfare-enhancing, even according to their own subjective standards. In these cases, the law is justified in intervening to ensure that the decision that is made is one which promotes the person’s interests, and to prevent them from harming themselves through making decisions, the consequences of which they do not fully appreciate. As Jonathan Herring observes, enabling people to flourish ‘may be possible with little intervention by the state’ for some people, but for others, some degree of intervention may be necessary ‘to enable a person (or a group of people) to live their lives fully’.Footnote ⁷⁶ This ‘right and duty to care for those not able to care for themselves’Footnote ⁷⁷ has been recognised in England since feudal times, with the parens patriae doctrine originally bestowing the power to do so on the monarch, before this was transferred to the courts in the sixteenth century.Footnote ⁷⁸

For those who regard autonomy as having independent normative importance beyond its connection to welfare, it may also be said that decisions made by people incapable of autonomy do not warrant the same respect. According to Kant, it is their capacity for rational action that distinguishes humans from other animals, and makes them worthy of respect.Footnote ⁷⁹ As Simon Lee suggests, respect for autonomy thus rests on an assumption: that people are rational beings, capable of assessing the information and weighing the options available to them.Footnote ⁸⁰ The value in recognising people as rational agents capable of making choices may therefore be deemed less pertinent for people who lack that decision-making ability.

According to the liberal framework which underpins the MCA, therefore, while people capable of autonomy ought to have the liberty to make decisions free from state interference, for those who are incapable, the law has a legitimate role in intervening to ensure that the decision made best reflects the agent’s values and beliefs and protects their interests. As Beverley Clough observes, ‘this distinction between the public sphere of interference and the private sphere of non-interference has been challenged by many feministic legal theorists’, as has the Enlightenment ‘ideal of an individualistic, rationalistic, and masculine legal subject’ on which such legal frameworks are built.Footnote ⁸¹ It is not my intention to rehearse such criticisms here (though they will be picked up on again in the Conclusion).Footnote ⁸² Rather, I aim simply to acknowledge the political and jurisprudential framework which underpins the current law with a view to analysing the extent to which it does – and indeed can – live up to the liberal ideals it seeks to promulgate. According to this framework, it is essential that the law can reliably distinguish those who are capable of making autonomous choices from those who are not. This is the role of capacity in law, which, as Jonathan Herring and Jesse Wall note, seeks to determine ‘the minimum necessary for autonomy and treats the person as autonomous once they cross that threshold’.Footnote ⁸³ Capacity is thus generally understood as a condition for the exercise of autonomy: if a person has capacity, then absent other ways in which their autonomy may be being undermined (such as the coercion or undue influence of others), they are deemed to be capable of acting autonomously. If they do not, they are thought not to be able to take autonomous decisions. The test for capacity contained in the MCA thus plays a crucial role in determining when the state will defer to the ‘individual’s subjective choices, protecting individual’s autonomy from outside intrusion’,Footnote ⁸⁴ and when it will not.

1.3 The Test for Capacity

Given its role in determining the limits of legitimate state authority, it is generally assumed that the test for capacity must be neutral as to the substance of the values, beliefs, or reasons underpinning any given decision. After all, to place any substantive limits on the types of decision that a person can capacitously take, or the reasons or values that a person may choose to act upon, would seem to directly contradict the objective of creating a protected space for individual autonomy. As a result, the Mental Capacity Act 2005 adopts a process-orientated account of capacity, which focuses on whether certain of the agent’s cognitive capacities are intact, and not on the outcome of the decision, or on the substance or origins of values or beliefs which underpin it.

Although the MCA imposes a presumption in favour of an agent having capacity,Footnote ⁸⁵ whether they are deemed capable of making a decision depends on whether they meet the test for capacity set out in sections 2 and 3 of the MCA. Under section 2(1) of the MCA, an agent ‘lacks capacity in relation to a matter if at the material time [they are] unable to make a decision for [themselves] in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’. Section 3(1) further explains that ‘for the purposes of section 2’, an agent is ‘unable to make a decision’ if they are unable’

1. (a) to understand the information relevant to the decision,

2. (b) to retain that information,

3. (c) to use or weigh that information as part of the process of making the decision, or

4. (d) to communicate [their] decision (whether by talking, using sign language, or any other means).

Further guidance on these limbs of the test for capacity can be found in the Code of Practice accompanying the MCA.Footnote ⁸⁶ This makes clear that the information ‘relevant’ to the decision includes ‘the nature of the decision, the reasons why the decision is needed, and the likely effects of deciding one way or another, or making no decision at all’,Footnote ⁸⁷ while the agent must only retain the information ‘long enough to use it to make an effective decision’.Footnote ⁸⁸ It also elaborates on what is meant by the ambiguous ‘use or weigh’ limb of the test (explored in more detail in Chapter 2), explaining that

The MCA thus proceeds on the assumption that an agent either possesses the capacity to make decisions or they do not, and that this can be objectively determined through a test for capacity which assesses various cognitive capacities an agent may have (understanding, retention, weighting of information). As Natalie Banner explains, according to this approach,

That the MCA focuses on cognitive processes is perhaps unsurprising given its conceptual origins in liberal thinking. As Robin Mackenzie and John Watts have observed, the criteria for capacity have inevitably been shaped ‘by liberal views of the person who expresses free will and agency in rational, self-determining decisions’ which makes ‘it is logical enough that competence tests would center upon measuring cognitive abilities’.Footnote ⁹¹

However, defining competence in these ‘exclusively cognitive terms’ is, as Louis Charland observes, also essential to maintaining an air of objectivity in the test: ‘so defined, competence has little or nothing to do with value … [making] it easier to view it as an objective commodity’.Footnote ⁹² Given the role played by the test for capacity in defining when an agent may make decisions for themselves, this objectivity is perceived as crucial. Whether or not an agent is able to decide for themselves ought to hinge on whether they have, or do not have, certain cognitive capacities, and should not depend on the idiosyncrasies of either the assessor or the agent themselves. As Charland observes:

Since a person’s values and beliefs are inherently subjective and idiosyncratic, any reliance on them when assessing capacity may risk introducing subjectivity into the test. It was for this reason that the Law Commission cautioned against any approach which focused on the content of a person’s decision, given the risk inherent in it, that ‘any decision which is inconsistent with conventional values, or with which the assessor disagrees, may be classified as incompetent’, which ‘penalises individuality and demands conformity at the expense of personal autonomy’.Footnote ⁹⁴ In a similar vein, the Law Commission recommended including a further provision in the Mental Capacity Draft Bill to reiterate that ‘a person is not to be treated as unable to make a decision merely because he or she makes a decision which would not be made by a person of ordinary prudence’.Footnote ⁹⁵ This now embodies one of the key statutory principles underpinning the Act, contained in section 1(4) of the MCA (albeit the notion that a person of ‘ordinary prudence’ has been replaced with simply ‘an unwise decision’Footnote ⁹⁶), and the accompanying Code of Practice further emphasises that when testing for capacity, ‘what matters is [the agent’s] ability to carry out the processes involved in making the decision – and not the outcome’.Footnote ⁹⁷

The test for capacity thus adheres to a form of ‘value-agnosticism’.Footnote ⁹⁸ As Richard Huxtable explains, the test ‘purports to focus upon functioning (and thus process and rationality) rather than on the substance of, or the reasons (and values) underpinning, the decision’.Footnote ⁹⁹ Indeed, as Lord Donaldson set out in Re T, a person who has capacity is entitled to refuse treatment or care interventions whether the reasons are ‘rational, irrational, unknown or even non-existent’.Footnote ¹⁰⁰ This, as John Coggon observes, would seem to suggest that ‘as long as the patient’s thought processes are not in doubt, his underlying reasons are not open to question’,Footnote ¹⁰¹ a view reinforced by Lady Justice Butler-Sloss’s powerful assertion in Re MB that even a decision ‘which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it’Footnote ¹⁰² should not be taken to be illustrative of incapacity.

At first sight, this approach has much to commend it. It helps to ensure certainty and consistency in the application of the law, which is essential if people are to be able to plan their lives accordingly and not have their freedom arbitrarily interfered with. More importantly, it is essential to protecting a sphere of independence for people to pursue their own values, in accordance with the principles of a liberal society set out earlier. As Charland explains, ‘the right of an individual to make his or her own medical treatment decisions goes to the heart of what it means to be an autonomous individual’.Footnote ¹⁰³ The decision of whether to accept treatment or care is not merely a medical question – it engages the agent’s priorities and aims in life, their familial and relational circumstances, and sometimes even their belief system. The agent must balance a number of different factors and interests against one another to determine what course of action will be best for them, the weight or importance being attached to each inevitably depending on how they value and prioritise different aspects of their life, or death. Given this, there is no one objectively verifiable answer to the question of what is best for a person in any given treatment and care decision: people may legitimately reach different conclusions, as perspectives diverge on the sanctity of human life, on what chances are worth taking at what cost, on what makes for a ‘good’ life and a ‘good’ death. Nowhere is this more true than in decisions at the end of life. As Alexander Kon observes, ‘deciding when the outcome of care will be a fate worse than death’ is a deeply personal matter: ‘there is no right or wrong answer’.Footnote ¹⁰⁴ A finding that someone lacks capacity in this context, denying them the right to make decisions according to their own values and beliefs merely because these contravene ‘conventional values’,Footnote ¹⁰⁵ would seem wrong: it would be to force objective conceptions of what is valuable on a person, denying them the opportunity to pursue values and commitments that they consider important. This, as Kymlicka explained, does not benefit a person,Footnote ¹⁰⁶ and it might even harm them. In Ronald Dworkin’s powerful words, ‘making someone die in a way that others approve, but he believes a horrifying contradiction to his life, is a devastating, odious form of tyranny’.Footnote ¹⁰⁷

Maintaining value neutrality and objectivity in the test for capacity is thus considered essential for it to perform its role in demarcating the appropriate boundaries of state interference. In a liberal democracy committed to value pluralism and tolerance of different beliefs and perspectives, a person ought, in principle, to be able to live – or die – according to their own values, beliefs, and commitments, providing that in doing so, they do not cause harm to others. And as Rob Heywood notes,

Yet, as Chapter 2 will make clear, the picture is, in reality, far more complex. Given the way the current test for capacity is framed, it cannot be applied in practice without reference to the values that underpin the decision. This is not merely a problem with its current framing in the MCA; rather, as Charland captures, ‘there is no such thing as mental competence without value, and normative considerations associated with value cannot be eliminated from the assessment of decision-making capacity’.Footnote ¹⁰⁹ An agent’s decision-making processes cannot be assessed in isolation from the substance of the values, priorities, or beliefs driving that decision. In practice, the current approach, with its ostensible value agnosticism, gives assessors considerable latitude to determine how they wish to use values in their assessments and whose values they wish to use. The result is not only subjectivity and inconsistency in the application of the test for capacity but also the obscuring of heavily value-laden judgements, which are insulated from scrutiny and challenge, allowing potentially unwarranted paternalism to go unchecked.

In Chapters 2–6, changes to the test for capacity will therefore be suggested, which articulate a more explicit role for values. In doing so, they will be required to engage head-on with the tension this raises between the liberal ideals espoused in this chapter, and the complex realities of decision-making on the ground, where, especially in the psychiatry context, too puritanical a commitment to value neutrality may result in a failure to protect highly vulnerable and non-autonomous individuals.