Central to the Mental Capacity Act 2005 (MCA) is the claim that a conferral of incapacity may not be based on the wisdom of a decision alone. This paper problematizes this position. Values-based medicine is drawn on to explore the process of capacity assessment, highlighting the presence of preconceptions throughout assessment. Two cases before the Court of Protection are examined to bring into...

Background The current trend in mental health law is to advocate an increased importance on the capacity of the persons with psychiatric disabilities, sometimes to the exclusion of other criteria of compulsion [1]. Strong arguments can be made for the academic coherence of this approach: unlike other standards of compulsion, it takes into account the move toward non-discrimination in its approa...

Generally, cash benefits under both the Social Security and Supplemental Security Income (SSI) programs are paid directly to the entitled person. The Social Security Act, however, also provides for the appointment of a representative payee to receive checks in behalf of the beneficiary when such action appears to be in the latter’s best interest. A payee is usually appointed for a person under ...

It has been argued that the inherent risks of advance directives made by healthy people are disproportionate to the potential benefits, particularly if the directive is implementable in cases of reversible mental incapacity. This paper maintains that the evidence for such a position is lacking. Furthermore, respect for the principle of autonomy requires that individuals be permitted to make ris...

The prevalence of memory impairment, including dementia, increases exponentially with age. Of people with late-onset dementia, about half have Alzheimer’s, 16% have vascular dementia, and 30% have other forms of dementia.1 Alzheimer’s disease, the most frequent cause of dementia in Western societies, affects an estimated 5 million people in the United States and 17 million worldwide.2 The onset...

Cognitive neuroscience is challenging the Anglo-American approach to criminal responsibility. Critiques, in this issue and elsewhere, are pointing out the deeply flawed psychological assumptions underlying the legal tests for mental incapacity. The critiques themselves, however, may be flawed in looking, as the tests do, at the psychology of the offender. Introducing the strategic structure of ...

Evaluation of decision-making capacity (DMC) for treatment is challenging. Owen et al, in this issue of the Journal, compare the abilities (understanding, appreciation and reasoning) relevant to DMC in medical and psychiatric patients. Here I discuss three key issues their article raises and that are relevant to the direction of future research.