Decision-Making, Legal Capacity and Neuroscience: Implications for Mental Health Laws

Bernadette McSherry
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Bernadette McSherry: Melbourne Social Equity Institute, University of Melbourne, 201 Grattan Street, Parkville, Victoria 3010, Australia

Laws, 2015, vol. 4, issue 2, 1-14

Abstract: Neuroscientific endeavours to uncover the causes of severe mental impairments may be viewed as supporting arguments for capacity-based mental health laws that enable compulsory detention and treatment. This article explores the tensions between clinical, human rights and legal concepts of “capacity”. It is argued that capacity-based mental health laws, rather than providing a progressive approach to law reform, may simply reinforce presumptions that those with mental impairments completely lack decision-making capacity and thereby should not be afforded legal capacity. A better approach may be to shift the current focus on notions of capacity to socio-economic obligations under the Convention on the Rights of Persons with Disabilities.

Keywords: legal capacity; mental capacity; decision-making; mental health laws; neuroscience (search for similar items in EconPapers)
JEL-codes: D78 E61 E62 F13 F42 F68 K0 K1 K2 K3 K4 (search for similar items in EconPapers)
Date: 2015
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Persistent link: https://EconPapers.repec.org/RePEc:gam:jlawss:v:4:y:2015:i:2:p:125-138:d:48785

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