Assessing mental capacity in the context of abuse and neglect: A relational lens

Abstract

Mental capacity (MC) is increasingly recognized as one of the most complex and nuanced constructs that has legal, health and social care implications. Although the UN (2006) Convention on the Rights of Persons with Disabilities (CRPD) provides a strong foundation for asserting a rights-based approach that arguably calls into question the use of this construct entirely, a more moderate, practically-focused approach recognizes that mental (in)capacity continues to be invoked as the justification for over-ruling individual choice. In keeping with the philosophy of the CRPD then, and human rights-based principles more broadly, mental capacity must be (re)envisioned to achieve compliance with more rights-based, contextualized directives. This necessitates developing new approaches to the assessment of decision-making capability (DMC) – the process whereby mental capacity is evaluated in practice settings – that move beyond simplistic cognitive approaches to recognize capacity as a dynamic, socio-relational process. The purpose of this paper is to begin to identify the challenges and opportunities associated with this reconceptualization particularly in situations of abuse and neglect.