Camillia Kong talks to us about her co-edited collection, Capacity, Participation and Values in Comparative Legal Perspective (Bristol University Press, 2023)
The purpose of this edited collection is to advance much needed international comparative contribution to mental capacity law. Our collection draws together contributions from 11 jurisdictions, each focusing on the substantive themes of the role of values and participation of persons with disabilities, both of which go to the heart of normative inquiry and practice in mental capacity law. The chapters in this volume are all framed around the following set of core questions:
We are interested against that to understand what those laws mean for the place and voice of persons whose decisions are governed by such laws. In practical application we are not only interested in the letter of different laws, but also how they function; including what they miss, or whether and how they may be inequitable in their application or generate outcomes that are opposed to their (apparent) rationales. It is only through a comparative lens that the confluence of socio-cultural, political, and historical values illuminates the intrinsic contextuality of the human rights lens and what it means to instantiate it in practice. Equally, only when mental capacity regimes are seen in parallel might we explore what productive or unproductive values and practices currently exist in different jurisdictions, harnessing those values and practices that might lead to productive changes that better respect persons with disabilities in mental capacity regimes. Finally, perspectives from other places shine their own light on the hidden or too-easily accepted norms within a jurisdiction: self-evident truths, assumptions about how things ‘have to be’, and theoretical and practical givens may, after all, be constructively called into question. The chapters in this book contribute to discussions and debates that will remain ongoing about better and worse framings, understandings, and implementations of mental capacity laws.
This volume developed out of the work from our AHRC-funded Judging Values and Participation in Mental Capacity Law project (2018-2022). A crucial dimension of this project was the expertise of our advisory group, comprised of both practical and academic experts, spanning from Singapore, USA, Australia, Ireland, as well as the UK. Through various meetings with our international advisory group, it became apparent to us the extent to which core project themes around values and participation in mental capacity law resonate across different legal jurisdictions and were ripe for cross-jurisdictional comparison. In developing the volume we were particularly motivated to explore these themes without a specific normative or legal anchor, such as the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Whilst the contributing chapters attest to its significance, we, as editors, were keen on not making or inviting pre-analytic assumptions about the rightness of the CRPD; nor were we seeking to examine the different levels of implementation, or different interpretations of the CRPD. Our focus rather is on how domestically-applicable laws in different jurisdictions engage the broad ideas of participation and values, set then against critical framings selected by the individual authors; recognising that in part these will themselves be telling about particular features of the jurisdiction(s) they are looking at. Moreover, we sought to engage with the question of how different jurisdictions have, or might, go about legal reform, in ways that are appropriately contextualised to socio-cultural and political realities on the ground.
Excerpt from the chapter: ‘The Place of Values and P’s Participation in Mental Capacity Law: Themes, Synergies, and Tensions’, by Camillia Kong, John Coggon, Penny Cooper, Michael Dunn, Alex Ruck Keene
This volume has taken an international approach to learning about, and critically exploring, how legal systems may, or may fail to, assure the (meaningful) participation in decision-making by, with, and for individuals who are subject to mental capacity laws. […] At the heart of evaluations of mental capacity law is a question of principle: what should be the aims of law? That question is often presented as an invitation to pitch for a side, or to find an appropriate balance between, two (together exhaustive and apparently mutually disentangled) ethical principles: autonomy and welfare. Within that characterisation, the challenge is about finding legal mechanisms either to protect and privilege individual choice, or about finding legal powers to authorise protective—“paternalistic”—interventions by third parties for an individual’s own good. Alternatively, the question may be answered through the language of social justice. For example, it may be posed as a matter of human rights, or broader-reaching concerns about honouring and respecting equality. Or in one further alternative of those we might mention, such an approach might look to ideas of wise stewardship in contexts of finite resources (financial and otherwise); whether those of the individual, of public authorities, or a combination of these.
Given the inevitable normative orientations within such ideas, editors of a similar project to this one might have taken an ethico-legal framing to prompt the contributors’ analyses that combines specific normative commitments with an action-guiding legal framework: most obviously, the United Nations Convention on the Rights of Persons with Disabilities (CRPD). And, of course, it is the case that the CRPD has arisen across various of the chapters in this book. It is true too that even whilst disagreement exists on the proper or best interpretation of the CRPD, its claims to a clear ethico-political basis and its vast jurisdictional reach speak strongly in its favour as a standard against which to measure the quality of domestic laws and legal practices. […] Whilst it is clear that the CRPD functions to shape the ongoing direction of legal reform and development across many jurisdictions examined in this volume, the instantiation of those ideals clearly differs in articulation and realisation. And importantly, the spectre of the commitments and values of more traditional mental capacity regimes, such as the concept of best interests or substituted decision-making, remain implicitly in the background, with these more CRPD-committed legislative framings still having to grapple with the practical realities and dilemmas related to third-party interventions in hard cases.
Thus, the MCA and its legal framework, taken at face value, present a good model to help anchor and situate our comparative exercise around values and participation. Perhaps paradoxically, this is so because of their (apparent, at least) combined attachment to principle and their principled incoherence. The Act aims to attend to concerns that emanate from all of the different normative starting points given in the opening paragraph to this section. At its core, the MCA espouses (formally, at least) ideological commitments through the idea of P-centricity. These are substantive in reflecting a form of political morality: one that seeks to prioritise ‘autonomy rights’ against threats from, for example, dominant professions or state actors. Yet it necessarily does so by creating contexts where the law itself, simply by ‘being there’, seems to place autonomy in jeopardy. Furthermore, in its framing, the practical goal of empowering P is founded on apparently conflicting principles that aim to promote equality in decision making (i.e. providing equality for disabled people[1]), whilst carving out methods for distinguishing between better and worse decisions (i.e. creating inequality in the respect that laws will give to assessments of the quality of decisions themselves). However important P’s participation and values may be, the legal (and consequent practical) imperatives are neither reducible to individual autonomy or welfare, nor to the sum of these.
This leads to enormous challenges. The aims of including P and giving weight to their values indicate an equivalence in being deferential to P and honouring their rights. Yet P’s rights—and the duties created in the making of decisions, stand too within a more ‘protective’ imperative, indicating scope for a disjuncture between P’s perspective on what decision should be made and the best answer to that question. It invites consideration of factors beyond P’s expressed will or even the determinative effect of honouring their values where these are known for certain. Yet on these questions—both on the substantive question of what those other factors are, and what determinative weight they should be given—the MCA is near silent. It simply provides a non-exhaustive ‘checklist’ in its account of the best interests standard. As various of the chapters show when looking at how the place of P is considered, there also arises a problematic silence around the idea of P as an individual; as opposed, for example, to a member of a family or community. A focus on P’s participation and values—on ‘centring’ P—has foundations in political liberal commitments to the moral importance of individual agency, the moral reality of value pluralism, and a consequent pull towards some sort of framework that allows for neutrality as regards (legal) judgment on the values that drive a decision. Its incorporation of values beyond P’s, however, creates a situation that is faced across the jurisdictions considered in this book: either the law itself needs to provide the detail on those additional values, or it must provide (or by default allow) for persons other than P to do so. […]. Centricity of P is not the same as centricity of an unquestioning deference to what P says no matter what,[2] nor of a putatively objective configuration of values on which to base a decision. Hang-ups on terminology (the ‘true’ meanings of standards such as substituted judgement or best interests), or the pitting of a single, reductive binary (such as autonomy/paternalism), do not resolve the questions; they are, rather, some of the sites of contest. The frameworks and suppositions of the MCA make this stark, and have allowed a framing for their exploration across the jurisdictions that this book examines.
[1] The term used in England and Wales, in knowing contradistinction to the preferred term in the CRPD.
[2] We note, parenthetically, that the ‘hard-line’ interpretation of the CRPD espoused in General Comment 1 might be thought to be based upon an assertion of the identity of these two concepts (see Committee on the Rights of Persons with Disabilities, General Comment No 1, Article 12: Equal recognition before the law (UN, 2014).