The Be Clear About Exactly What You’re Doing Act 2017

I’ve talked about the Mental Capacity Act 2005 and the UN Convention on the Rights of Persons with Disabilities quite a few times on this blog.

There are things I like about the MCA, but I think that it is fatally ambiguous between when you’re making a decision for someone because you don’t know what they want and when you’re making a decision for someone despite what they want. Those two things are not the same. Recent practice in the Court of Protection is tending to soften this, but only sometimes and only a bit.

There are things I like about the UNCRPD, but many interpretations of it are fatally ambiguous between doing what the person tells you (however that is communicated) and guessing what the person might want if you could understand them. These two things are not the same either.

So I thought about what an Act that drew some bright lines in these places would look like. I’m still not convinced decision-making legislation is a good idea right now, or maybe ever, and I am definitely not saying that anything like this should be enacted, but it’s an interesting thought experiment.

Thanks to the incomparable Laura Pritchard-Jones for feedback on an earlier version. I’d love more feedback on this. All opinions welcome.

I present to you:

The Be Clear About Exactly What You’re Doing Act 2017

1. Any person (R) proposing to act on behalf of another person (P) must make every possible effort to determine what P currently wishes to be done, or not done, in connection with that action.

 

2. For the purposes of this Act, P’s currently expressed wishes must be distinguished from their wishes more generally.

(1) P’s currently expressed wishes may include:

(a) Anything P communicates in any language, including sign language.

(b) Anything P communicates by other means, such as the use of pictures.

(c) Anything that P clearly expresses in behaviour.

(2) P’s currently expressed wishes do not include:

(a) Anything P might have expressed in the past, before R proposed the action on their behalf.

(b) Anything P might have expressed on another occasion that any R proposed to act on their behalf.

(c) Any conclusions drawn from what R believes P would want, if they could communicate, understand the question, or retain, use and weigh the relevant information.

(d) Any conclusions drawn from what R believes best accords with P’s other wishes, beliefs, values, and their pattern of life.

 

3. An action can be taken against P’s currently expressed wishes if, and only if, the following four conditions are met.

(1) P has a false belief that can be demonstrated to be false.

(2) P faces imminent and severe danger because of that false belief.

(a) ‘Imminent’ means that the danger is extremely likely and cannot be averted unless action is taken promptly.

(b) ‘Severe’ means that if the threat posed by the danger occurs, then it will be both serious and irreversible for P.

(3) The danger cannot be averted without acting against P’s expressed wishes.

(4) The action against P’s wishes is proportionate, taking into account P’s other wishes, beliefs, values, and their pattern of life.

 

4. If, despite R making every possible effort, P’s currently expressed wishes about a matter cannot be determined, then any action taken on their behalf must be taken in their best interests.

(1) Any action made in P’s best interests must be proportionate, taking into account P’s other wishes, beliefs, values, and their pattern of life.

(2) Any action made in P’s best interests must take into account any previous statement that P made about what they would want in the current circumstances.

(3) Any R acting for a P who cannot or will not express their wishes must:

(a) encourage and support P to express their wishes,

(b) consider whether P will be able to express wishes on this matter in the future and, if so, attempt not to foreclose P’s options at that later date, and

(c) so far as is possible, encourage and enable P to participate in the act taken on their behalf.

 

5. Any R acting against the currently expressed wishes of P or for a P who cannot or will not currently express their wishes must, so far as is possible, consult and take into account the views of the following people with regard to the proposed action:

(1) anyone named by P as someone to be consulted on the matter in question or on matters of that kind,

(2) anyone engaged in caring for P or interested in their welfare,

(3) any donee of a lasting power of attorney, advocate, or representative appointed by P, and

(4) any deputy appointed for P by the court.

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Freedom

Freedom

What kind of freedom for people with intellectual and psychosocial disabilities can we reach with laws, professionals, plans, monitoring, and all the weight of the modern state?

Can we reach any freedom that counts?

One time, a few years ago, I had a really good day rock climbing with friends in the Dinorwic slate quarries.

I was on a climb that isn’t too hard, but that has a tricky little sequence of moves maybe thirty foot up. There’s a little ledge just before this sequence, and I was stood on that, trying to work out how to get through the difficult bit, when it started to rain. Wet slate is as smooth as glass and about as much fun to climb on, so I had to either to either bail out completely or do the rest of the climb straight away.

Something odd happened. I stopped thinking about the tricky sequence, and just started doing it. And then I kept on doing it. Climbing quickly, fluidly, and thoughtlessly up the whole rest of the climb. Climbing, basically, like someone a whole lot better at climbing than I am.

The rain was the trigger, but I mostly climb in the UK. I’ve been rained on hundreds of times, and the normal effect is just that my climbing gets even worse. I don’t really know what happened that one day, but I do know what it felt like. It felt effortless. I remember, at the time, watching myself climb and enjoying the sensation of watching myself climb. It didn’t feel like I was doing anything at all.

Now, let’s get down to how lawyers talk about people with mental disabilities.

The Mental Capacity Act says that to be capable of making a decision, I have to understand and use and weigh the information relevant to that decision. On that climb, I couldn’t have articulated to myself the information relevant to the moves I was making. I didn’t understand it. I was moving too fast to even have time to understand it. Yet it was that very lack of understanding that made it feel so great and that made me objectively climb way better than I normally do.

The UN Convention on the Rights of Person’s with Disabilities is better on this, but not by much. Instead of ‘understanding’, it tends to crunch decisions into ‘will and preferences’. I was pulling myself upwards, so presumably I ‘willed’ to get to the top. The trouble is, though, that description misses everything that was so special about the day. I wouldn’t have cared massively if I’d had to lower off the climb. I’m a mediocre climber and I’m fine with that. I didn’t have the psychological experience of ‘willing’ or even ‘preferring’ to climb. What made the climb so great was that the little voice in my head that would normally be saying things like ‘go for the little notch just to the right’, ‘shift your weight on to your left foot’, and so on actually shut up. That isn’t ‘preferring’ something. That is being free from the continual, grinding demand of preferring things.

What I am saying is that the law flattens and distorts human psychology, and that these seemingly innocent simplifications made so that lawyers can feed the empty but perpetually hungry God of ‘legal certainty’ will always have real human costs.

Freedom under the Mental Capacity Act is freedom to act on your own understanding. If you are in the large class of people with a disability whose capability for understanding is always under suspicion, then it is not the freedom to have understanding fall away and pure thoughtless action take over. As for letting understanding ‘fall away’ half way up a quarry face in the rain, well you can forget that.

Freedom under the UN Convention is freedom to determine your own will and preferences. That is not the freedom to let the endless, tedious, self-monitoring, chatty, bureaucratic modern self just shut the hell up and go and do one. If you are in the large class of people with a disability who will be suspected of ‘needing support’, then not having preferences is likely to result in some well meaning professional busybody ‘interpreting’ your non-existent preferences for you. At least the General Comment would let you tell them to get lost, but even having to do that drags you back into the world of expressing preferences to someone with implicit power over you, the power to ‘interpret’ you.

The Act’s freedom and the Convention’s freedom are, in themselves, fine. It’s when they fall into the hands of the law that they get dangerous. Then, all those little moments that don’t fit the pattern, like that day I climbed well, get pushed to the side by a bureaucratic machine bent on compliance; and then every act of empowerment carries in it the seeds of domination.

I don’t dance because I understand the ‘information relevant’ to dancing. I don’t dance because I ‘will’ to dance. I dance when the music gets a hold of me and makes me dance. Freedom is letting it.

Choosing a place to stand when criticising mental capacity

At the moment, usually in the context of discussions about Article 12 of the UN Convention of the Rights of Persons with Disabilities, the very idea of mental capacity is coming under attack. That’s good. If the concept can’t take a good battering, then it doesn’t deserve to.

To stretch the ‘battering’ metaphor a bit further though, some of the attacks look more like someone wildly windmilling their arms in the rough direction of a target than like Jet Li taking down the White Lotus Society. I think a lot of it comes down to a failure to unequivocally take a side when criticising the concept. This happens at least three ways.

First, sometimes people think an argument that everyone is irrational adds strength to the UNCRPD inspired idea that everyone, no matter what their disability, is able to make their own decisions (sometimes, Kahneman’s ‘Thinking, Fast and Slow’ is mentioned in this regard, but see Retraction Watch). This is silly. Arguing that everyone is irrational obviously doesn’t support a claim that some people are more rational than we have been treating them. Rather than defending the claim of people with disabilities are able to make their own decisions, claiming humans are irrational undercuts everyone’s claim to be able to make their own decision.

In other words, the concept of capacity can be attacked from either extreme: either because everyone (or maybe just more people than we admit) is rational, or because everyone is irrational. It can’t be attacked from both sides by the same person, though, if that person wants to be taken seriously. If you say to me, ‘that car is mine because I bought it’ or if you say ‘it’s OK that I stole that car because all property is theft anyway’, then we can talk about that. If you say to me, ‘that car is mine because I bought it, and anyway it’s OK that I stole it because all property is theft’, I’m going to think that you’re a self-serving liar.

Worse than this, arguing that no-one is really rational is a claim that eats itself. If no-one is rational, then reform, and the law, and argument, and arguing that people are irrational are all just so many pointless dead words. To speak to another person is to assume that they are responsive to reasons.

This phrase, ‘responsive to reasons’ brings up the second ambiguity. There are, broadly, two common ways of talking about reason and rationality. Let’s call them the maximalist and minimalist versions. On the maximalist version, ‘reason’ means something like the ability to weigh up all the factors at play in a situation, including your own desires, and reach a balanced, logical, coherent conclusion. Tall order. On the minimalist version, being reasonable just means you that are responsive to reasons. It means that you are not an inanimate object, like a brick falling under the force of gravity. You can, for example, see an uncontrolled fire and decide to run away.

Critics of the very idea of mental capacity sometimes assume that the concept is based on a maximalist idea of reason; and then, understandably, doubt whether anyone can live up to that. This is a straw man. All the Mental Capacity Act 2005, for example, requires is that someone can understand, retain, and use and weigh the ‘information relevant’ to a decision. It doesn’t say all the information, or completely understand the information relevant, or that any decision must be logical and considered; and judges talk a lot more about the dangers of setting the bar for capacity too high than the dangers of setting it too low. To me, this looks a lot like a minimalist account of reason. You are reasonable if you are responsive to the reasons that are relevant in that situation (that raises the question of who gets to be the final judge of what is relevant, but that’s not about the concept of capacity, it’s about who gets to judge it).

Once again, it’s about taking a side on an issue. Being ambiguous between minimalist and maximalist accounts helps no-one. The thrust of the disability rights claim is that people with disabilities are responsive to reasons, but the law treats them as though they are not. For that blow to hit, though, it has to be against the law as it is, not against some maximalist rationality that goes beyond the law.

There is a third ambiguity tangled in these two. The ambiguity between making a decision and being able to make a decision. On occasion, it is pointed out that everyone does act irrationally sometimes. This adds nothing to the debate. Incapacity is an inability to understand and ‘use and weigh’ and so on, not a failure to do so. Failing to understand does not, by itself, mean that you lack mental capacity. Similarly, calls for reform are not based on the idea that people with disabilities always will understand and ‘use and weigh’ information. They are based on the idea that they can do those things.

Once again, there is a need to choose a place to stand. You can, of course, say that in practice the distinction between understanding and being able to understand is ignored. It’s an important point to make, but then they’re using the concept of mental capacity to criticise practice. You’re no longer criticising the concept. Or you can argue that in practice the distinction is going to cause a total mess because it will be hard to tell failing to understand from being unable to understand. I did that myself. Then, though you’re not really attacking the concept of capacity. You’re just questioning how useful it is.

So, to wrap up, there are three ambiguities: between the claims everyone is rational or everyone is irrational, between minimalist and maximalist rationality, and between making a decision and being able to make a decision. So far as I can see, the only place to stand if you both want to argue for disability rights and to hit the concept of mental capacity is for rationality, for minimalist rationality, and for capability over actuality. In other words, for the claim that people are capable of minimalist rationality. To argue from universal irrationality is absurd and self-defeating. To argue against maximalist rationality, or that everyone sometimes fails to understand or ‘use and weigh’, is to miss the concept of mental capacity entirely.

On a related note, it’s common for advocates of strong interpretations of Article 12 of the UNCRPD to tell stories in which claims for universal personhood are new. This is a historical nonsense, and as a rhetorical move, I don’t think it’s a good idea. Kant thought all human beings were capable of autonomy ‘from conception’, and Augustine clearly considered those with intellectual disabilities to be full persons. What is new is the claim that personhood entails being able to make every relevant decision yourself. I don’t think that the new claim, that personhood entails complete control over decision-making, has yet been adequately defended. For now, though, I just want to draw attention to the rhetorical move of unnecessarily claiming newness for universal personhood. Rather than stress conflict with what went before, why not emphasise continuities with the Christian and Enlightenment traditions? After all, does a wise martial artist not use their opponent’s momentum?

‘Understand’ is not an axis

And now for a return to musings on mental capacity…

The Mental Capacity Act 2005 says that you are unable to make a decision if, among other things, you don’t ‘understand’ the information relevant to the decision ‘because of an impairment of, or a disturbance in the functioning of, the mind or brain’. Lots of other jurisdictions have a similar idea.

A lot turns on this. The Act has three other ways of not being able to make a decision: if you cannot communicate what you want, retain information, or use and weigh the information. The first two are usually interpreted minimally, and the Act even requires this. Communication can be by ‘talking, using sign language or any other means’ [s3(1)(d)]; and you only have to be able to retain information ‘for a short period’ [s3(3)].

‘Using and weighing’ information, in contrast, tends to be an issue when someone talks as though they understand the information relevant to the decision; but then acts in a way incompatible with their verbal performance. For instance, if someone can explain to you, in detail, the importance of looking after their money, then walks out the door and spends everything that they have on lottery tickets, you might doubt whether they can ‘use and weigh’ that information after all. That makes ‘use and weigh’ secondary to ‘understand’ in practice.

If ‘communicate’ and ‘retain’ are minimised, and ‘use and weigh’ is secondary to ‘understand’, then a lot turns on how well we understand what we mean by ‘understand’. That worries me, because I don’t think we understand ‘understand’ much at all.

The cases, and the secondary literature, abound with seeming innocuous phrases like ‘level of understanding’. I say seemingly innocuous because, hard as they are to avoid, I think they totally misrepresent the practice of mental capacity assessments.

First, an important point that lawyers don’t take seriously enough. Mental capacity assessments weren’t invented  by the Act, it just codified common law. Beyond that, though, they weren’t created by the common law. It just basically approved what was going on anyway. The emphasis in the cases from the eighties and nineties is very clearly ‘filling’ a gap in the law, so that what doctors were doing anyway wasn’t illegal.

It goes deeper than that, though. Something like capacity assessments are just part of the human condition.

If someone is trying to do something dangerous, and you care about them or are responsible for them, then the question of whether they understand what is happening is usually morally salient. Maybe, to use Mill’s example, they don’t know the bridge is about to collapse. Maybe they’ve been smoking weed all week, are having a serious case of paranoia, and wrongly think that all their friends are conspiring against them. If you really are trying to do the right thing, then the onus is on you to try to assess what the person understands (while being humble enough to acknowledge that they might actually understand things better than you).

Lest I be misunderstood, this doesn’t necessarily justify treating people with mental disabilities differently to anyone else.

So assessing the understanding of people around us, with a view to influencing, perhaps even coercively, their behaviour is just something that crops up in a host of human situations. It didn’t suddenly appear with the law getting interested, or medicine getting interested. Back in the palaeolithic, if your cousin ate some funny mushrooms, and tried to head-butt a mammoth, the question would still arise. Maybe it would be cast in terms of spirits or gods, we don’t really know what people believed back then.  Nevertheless, they were still people, with languages of some sort, and the question of understanding would still arise.

The point of this digression all the way back to the stone age is simple. Mental capacity assessments are not created from the aether by the brilliant rationality of lawyers and doctors. They are a medico-legal bureaucratic representation of an ancient human practice. Nothing is wrong with that. Creating representations of practices helps us to understand them.

What is wrong, however, is the way that ‘understanding’ represents the practice when it appears in ‘level of understanding’ or ‘degree of understanding’. It’s a crap metaphor. It can be crap in at least two ways.

First, there’s the obviously crap way. This is when people talk as though there is a ‘level of understanding’ needed for all capacity assessments, and the process of capacity assessment creates a lasting ‘binary’ between those with capacity and those without. It simply doesn’t: mental capacity is decision specific. Just because I don’t understand the information for this decision doesn’t mean I won’t understand the information for another decision, or even the same decision tomorrow.

(In contrast, the Act does create a binary between those whose understanding can be assessed and those whose cannot: between those with and without of ‘impairment of, or a disturbance in the functioning of, the mind or brain’. Furthermore, terrible implementation of the Act might mean that capacity assessments are, at least sometimes, treated as though capacity was a once and forever deal. That is not the Act’s fault, or the concept of capacity’s.)

The second way that ‘level of understanding’ and similar metaphors are crap is less obvious. They give the picture of an axis of understanding for a particular decision, as though understanding was one of those big charity thermometers. Then, once you hit a certain level of facts understood, you’re over the line and you understand enough to have capacity.

This is sloppy, lazy drivel; and I don’t think it reflects what is actually going on in a capacity assessment at all.

Let’s say we’re trying to assess whether I have the understanding necessary to live alone in a house. Part of the assessment is likely to involve making sure I understand  everyday household risks: simple things like why I need to treat electrical sockets with due respect, or why it’s a bad idea to turn the gas hob on without lighting it. Now, these different components aren’t additive, they work in parallel. If I get the point about sockets, but just don’t understand about gas at all, then I don’t understand the everyday household risks relevant to this particular house. Even if I’m an expert in electricity, and could draw circuit diagrams of the whole house, if I don’t understand gas, I don’t understand the information relevant to the decision. Knowing lots about electricity doesn’t push me up the big imaginary charity thermometer. Understanding household risks simply isn’t one axis. It’s these two and a whole host more.

Beyond that, if what we’re really interested in is whether I understand what I need to to live alone then household risks altogether is just one collection of axes (not the chopping things, the plural of axis) among many. If, to live alone, I also need to understand how to manage some basic finances, then my excellent grasp of household risk won’t help.

It works in the opposite direction too. Understanding that I shouldn’t stick forks in the electric sockets, even really well, won’t help if I think it’s a good idea to splash water on them. Even understanding socket safety is more than one axis.

Understanding is not an axis.

We do not have ‘levels of understanding’, ‘degrees of understanding’, or ‘amounts of understanding’.

Understanding is not a charity thermometer, or a sprint to the finish line.

It would be more transparent, and honest, to talk about the ‘criteria’ of understanding. That way people can argue about whether, for instance, I really do need to be able to understand financial decisions to live alone. Talk of ‘levels’ just submerges what is happening below the murky waters of ‘what the experts say’.

 

Supported decision-making is a revolution

This is the second of two posts about the UN Convention on the Rights of Persons with Disabilities and ‘supported decision-making’. The first one is here. In that post I argued that calling supported decision-making revolutionary risks exaggerating the differences between people with disabilities and others, and that this might result in stigma. I said that supported decision-making ‘boils down to communicating with someone, respecting them, and listening to them. That is not a revolutionary idea. What would be revolutionary would be if it consistently happened’.

In this post, I talk about why support actually happening might have revolutionary implications. Hopefully, I manage to do so without falling into the stigmatising trap that I warned of in the other post. So it’s important to start by stressing an important point: everything that follows assumes that there are no intrinsic blocks to any person with disabilities being supported to make decisions. In other words, this post assumes that disability itself never makes it impossible for someone to be supported to make decisions. Whether or not that is true is an important question, and there has been debate about it; but it is not what I am talking about here.

To see the revolutionary implications of supported decision-making it helps to do some non-ideal theory. A contrast will help. Ideal theory, according to Rawls, ‘assumes strict compliance and works out the principles that characterize a well-ordered society under favorable circumstances’ (Theory of Justice, 216). There is nothing necessarily wrong with that. As Rawls says, it lets an objective or aim be worked out. A great strength of the UN Convention and the surrounding literature is that so much is done in this ideal mode. Giving some, however loose, description of a world in which there would be justice for people with disabilities makes it easier to talk about the failings of the present.

After ideal theory has worked out where we are going, though, it is still necessary to work out how we get from here to there. In many ways, this is the real question. There’s an analogy here with Kierkegaard’s ‘little Socratic secret: that the crux is exactly the relationship of the subject’ (Concluding Unscientific Postscript, 33); and for this crux, we need non-ideal theory. As the post-legislative scrutiny of the Mental Capacity Act 2005 shows, ‘strict compliance’ with the law cannot really be assumed. More importantly for this post, though, sometimes conditions are not favourable.

I get to a particular unfavourable condition in a few paragraphs; but, to see why it’s important, first we need to reconstruct some of the justification for supported decision-making. There are two possible strands of justification: the instrumental and the constitutive. The instrumental justification would be something like ‘being supported to make their own decisions leads to better outcomes for people than having their decisions made for them’, where ‘better outcomes’ is measured either objectively or according to the person’s own aims.

Hardly anyone justifies supported decision-making on instrumental grounds. Even relative conservatives, who believe that it might sometimes be appropriate to make a decision for someone instead of supporting them to make their decision, don’t think that ‘unwise decisions’, where someone else could decide better, by themselves justify abandoning support. If support is justified even when the person’s decisions lead to worse outcomes, then better outcomes are not the rationale for support.

That leaves the constitutive justification for support. That is something like ‘it is better to be someone who makes decisions about the things that affect them than someone who doesn’t’. Now, that might look self-evident; but, like most things that look self-evident, it is probably impossible to meaningfully justify.

Fortunately, supported decision-making doesn’t have to rely on the constitutive justification in this raw form. Instead, it can supplement the constitutive argument with an appeal to everyday morality to get something like the following:

J1: To the extent that a society considers it good to be the sort of person that makes decisions, it is discriminatory not to allow people with disabilities to decide on an equal basis with others.

Now, this places some restrictions on what laws are permissible, but does not yet justify supported decision-making. That, however, can then be done by an appeal to social reality.

J2: Everyone needs some support making decisions, and society usually adapts the support to the particular individual relatively smoothly; so, to the extent that a society considers it good to be the sort of person that makes decisions, it would be discriminatory not to adapt support to the particular needs of individuals with disabilities.

This is only part of a justification. Further work would have to be done to show that ‘the state’ rather than ‘society’ should provide a particular support; and it creates, at best, a rebuttable presumption. If, for instance, a society faced a lack of resources, then further arguments would have to justify providing support over addressing other needs. Nevertheless, I think that it’s a  fairly solid argument (at least until someone persuades me otherwise).

It is, however, still a constitutive argument. It is not about outcomes or goals. It is an argument based on what sort of person it is better to be. When combined with non-ideal theory, that point has revolutionary implications.

Ideal theory doesn’t worry about history. It asks what things should look like, not how we make things look like that. Non-ideal theory needs to take history into account, and that is important here. Everywhere in the world, there is a population of people with mental disabilities who have lived for years with other people making nearly every decision for them, often in abusive conditions virtually guaranteed to traumatise them and deprive them of agency. Clearly, not every person with a mental disability fits this description; and, even more clearly, the problem here is not the person, or the disability, but society. Nevertheless, these people exist, and they matter.

If supported-decision making is justified on constitutive grounds, then we are not trying to make things better for these people as they are now. We are hoping to help them to a better state of being. That has implications.

Some people might think that society has no right to tell people how to be at all, but that misses the point in couple of different ways. First, no-one is arguing that people should be forced to accept support decision-making, just that it should be offered to them. That’s not telling someone how to be, it’s offering them the hope of a better way to be. That word, ‘hope’, is important. I return to it shortly. Second, though, it is not the advocates of supported decision-making that are holding out a better way to be. Remember, J2 includes the clause ‘to the extent that a society considers it good to be the sort of person that makes decisions’. Supported decision-making is about including people in a society’s existing ideals, not about creating new ones just for them.

Offering the hope of a better way of being isn’t forcing someone to change, but that doesn’t mean that there is no reason to look closer. In particular, it’s worth looking at the kind of hope that is being offered.

I suspect that for some people supported decision-making may offer what Jonathan Lear has called ‘Radical Hope’. The following is adapted from his account (p92-94):

1. An entire way of life is coming to an end for some people.

2. Their very idea of what is good and valuable is tied up in the way of life that is ending.

So:

3. In an important sense they do not yet know what to hope for or aim for, so they must be open to radically different futures.

But:

4. Even if all that they know to be good and valuable is about to radically change, they nevertheless need a genuine and positive way to be open to the future.

5. This requires faith in a good beyond what they yet understand to be good. In the context of supported decision-making, this may be trust that supporters can see a good for me that I do not yet see for myself.

So:

6. Those facing the change must have faith that although they may lose their existing understandings of the good and the valuable, they will nevertheless somehow get the good and the valuable back. This is radical hope.

This is the sense that for some people, with long histories of institutionalisation and disempowerment, supported decision-making is a revolutionary prospect. It requires abandoning everything that they have known so far, including what they have known to be good and valuable, and trusting to an as yet unknown future. This is no small thing. Lear’s example is Plenty Coups, the last great leader of the Crow people. John Lippitt uses the example of Abraham, asked by God to sacrifice his son.

Sometimes, ‘revolution’ isn’t just hyperbole for ‘a big change’. Sometimes, ‘revolution’ means a leap into the unknown. The word should not be thrown around with blasé enthusiasm. It should be invoked with fear, trembling, and (for those of us who endorse supported decision-making) the hope that we live up to the vast trust that we may be asking people to place in us.

None of this is an argument against supported decision-making. Radical hope is hope, and those of us who worry about law and policy must be guided by hope too. It is just a reminder that the truly hard work of any revolution will not be done by ivory tower theorists or paid professionals, but by people with disabilities.

Supported decision-making is not a revolution

This is the first of two posts about the UN Convention on the Rights of Persons with Disabilities and ‘supported decision-making’. This one is called ‘supported decision-making is not a revolution’, and the next one will be  called ‘supported decision-making is a revolution’.

That might seem odd, but I don’t think they contradict one another. Hopefully, the reason why will become clear in part two.

Article 12(2) of the Convention says that ‘ States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’. There has been a lot of debate about what this means, but that doesn’t really matter for this post. Most people agree that it means that the state cannot make legal decisions for someone with a disability until it has made every possible effort to support them to make their own decision. The debates are about how much the Convention goes beyond this.

‘Supported decision-making’ is the process of helping someone to reach their own decision. It does not include making a decision for them.

The idea that the state cannot make decisions for disabled people unless it has tried to help them to make their own decision is revolutionary. Most states in the world have guardianship laws that allow a person to be stripped of their ability to make any legally effective decisions. Even when countries do have provisions for support, such as England and Wales, they are generally weak, limited, and unenforced.

So when activists and scholars describe Article 12 as ‘revolutionary’, ‘a paradigm shift’, or ‘entirely new’, then they are right. What worries me is the lack of precision with which they sometimes do it. The tendency is to talk about the newness of ‘the Convention’ or ‘the Article’ without specifying very carefully what is new about it. That means that if, after saying something like ‘a revolution’, they launch into a discussion of supported decision-making, then it looks like supporting people to make decisions is a revolutionary idea. That worries me.

The Convention promises a new legal relationship between the state and the disabled citizen (digression: philosophy geeks with a historicist bent might see it as a late example of what Charles Taylor calls the move from a ‘mediated access’ to a ‘direct access’ society). What is not new is helping another person to decide. We do it all the time. It is part of being a human being. None of us gets to adulthood without being helped to decide, and none of us can manage as an adult in society without being helped to make decisions all the time. Supported decision-making for people with disabilities isn’t different to this. It boils down to communicating with someone, respecting them, and listening to them. That is not a revolutionary idea. What would be revolutionary would be if it consistently happened.

All that is obvious, but it is important. As soon as supported decision-making for people with disabilities gets thought of as ‘revolutionary’ or a ‘paradigm shift’, then it makes people with disabilities different to everyone else. That will just feed stigma. Stigma is sneaky, stubborn, and creeps back when you aren’t looking. It is especially good at turning good intentions into bad practices.

In this case, the stigma can be dodged. So this is my plea to people writing about Article 12 of the Convention: don’t say ‘it is a revolution’ or ‘it is a paradigm shift’ and leave it at that. Say something like ‘it promises a revolution in the legal relationship between the state and the disabled citizen’ instead.

Just to complicate matters, part two will argue that supported decision-making might, in some ways, be more of a revolution than is usually assumed.

Part two

Metaphors of balance in the Court of Protection

This post is about mental capacity law. It’s not directly about what the law is or should be, though. It’s about how lawyers, especially judges, use one particular metaphor, and it’s about a danger that metaphor sometimes brings.

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Creative Commons image by Tony Higsett

The metaphor might be the oldest one in the law. It is the image of the ‘scales of justice’, and the connected idea that it is the judge’s job to ‘balance’ the claims of the competing sides in a dispute. It can be traced back at least to the 4000 year-old Egyptian concept of MaatIt is still a central image of the law of England and Wales, and many other places. The statue of justice on top of the Old Bailey still has a set of scales in her hand.

Sometimes, this central metaphor of the law can be a problem. I’m not saying that it is always or necessarily a problem, just that it can be.This is because the balancing scale is an excellent metaphor for the results of legal reasoning but not always a good metaphor for the content. To show what I mean, I’m going to start in a slightly roundabout fashion.

Kierkegaard, in his pseudonymous works, liked to poke fun at the Hegelians of his time, especially because they thought that their elaborate philosophical systems could answer the important questions of life. Most English judges would, I suspect, instinctively side with Kierkegaard here. One Hegelian concept he criticises, though, has an analogy in law. When facing an apparent contradiction in their system, Hegelians would rely on the concept of ‘mediation’. Kierkegaard, writing as ‘Constantin Constantius’, is scathing about this:

‘It is incredible how much flurry has been made in Hegelian philosophy over mediation and how much foolish talk has enjoyed honour and glory under this rubric …There is no explanation in our age as to how mediation takes place, whether it results from the motion of the two factors and in what sense it is already contained in them, or whether it is something new that is added, and, if so, how.’

Repetition, III, 189 (Hong Translation)

Kierkegaard is not criticising the idea of resolving contradictions or conflicts. He is criticising the idea that putting the two alternatives side-by-side, saying ‘mediation’, and then presenting an answer is a reasoned resolution.

There is a similar danger with the metaphor of balancing. If a judge carefully examines two alternatives and reasons his way to choosing one of them, then the metaphor is perfectly apt and harmless. If, however, a judge merely lists the factors on either side, waves the word ‘balancing’ around like a magic wand, and then presents a result, then even calling what has occurred ‘legal reasoning’ is probably overgenerous. A similar thing can sometimes be said in ethics, but that is a topic for another day.

Let’s have a  look at ‘balancing’ in contemporary mental capacity law. It’s such a central legal metaphor that it crops up a lot, but I want to focus in on one particular use: determining someone’s ‘best interests’.

This isn’t the place for a full introduction; but, in essence, someone lacks capacity to make a particular decision if at least one of the following is true: they don’t understand the information relevant to that decision; they can’t retain the information relevant to that decision; they can’t communicate that decision; they can’t ‘use and weigh’ (see, I told you that the metaphor got everywhere) the information relevant to that decision. If someone lacks capacity to make a decision, then someone else can make that particular decision for them; but they have to do it in the person’s ‘best interests’, not according to whim or (more controversially) according to what the person wants.

The balancing metaphor as a way of deciding someone’s best interests predates the current Mental Capacity Act 2005. In Re A (Medical Treatment: Male Sterilisation) [2000] 1 FLR 549 Thorpe LJ said:

‘…it seems to me that the first instance judge with the responsibility to make an evaluation of the best interests of a claimant lacking capacity should draw up a balance sheet.  The first entry should be of any factor or factors of actual benefit …Then on the other sheet the judge should write any counterbalancing dis-benefits to the applicant …Then the judge should enter on each sheet the potential gains and losses in each instance making some estimate of the extent of the possibility that the gain or loss might accrue.  At the end of that exercise the judge should be better placed to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses.’

I want to draw attention to two details of the way that the metaphor is used here. First, the talk of ‘loss’ and ‘gain’ evokes the idea of an accountant balancing numbers; so the idea smuggled in is that the balance sheet has some of the precision and certainty of mathematics. As we will see, that  idea didn’t last very long. Second, this is not like the Hegelians using ‘mediation’. Balancing in this case is an idea with content, it describes a particular process. Each possible consequence of a choice is given (pseudo-numerical) weight according to how good or bad it will be and how likely or unlikely it is. This may or may not be a good process or a plausible process, but it is not a conceptually empty process.

The Mental Capacity Act 2005 systematised the law, sort of. Section 4 list things that someone making a best interests decision should ‘consider’ and ‘take into account’, including the handy catch-all ‘all the relevant circumstances’. Mr Justice Lewison has said that this is Parliament endorsing the balance sheet approach (at [41]). I think he is wrong. Nevertheless, Parliament certainly hasn’t ruled out a balance sheet, and lining up the good and bad possible consequences of a decision does seem like a  very sensible step.

The problem for the idea that this is an ‘endorsement’ of the older law is that section 4 contains things other than possible consequences that must be considered: for instance, ‘the person’s past and present wishes and feelings’ and the views of ‘anyone engaged in caring for the person’. In these circumstances, it would have been open to the court to have two, tiered, balancing metaphors. The pre-Act balancing of consequences could have been a separate process within the broader balancing of everything listed in section 4. This isn’t what happened. Instead the two tests have been mashed together incoherently. Pre- and post-MCA precedents are run together indiscriminately: see, for instance, this case at [50 – 51].

Why is that important? It means that the same metaphor is now describing a different thing. Before, good or bad, the process involved comparing like with like. On each side of the ledger were consequences, and they were compared for how good or bad and and how likely they were. Now, different types of things are compared. Characteristically, a person’s wishes and feelings are ‘balanced’ against the bad consequence that other people think will occur if they follow them. Indeed, there is now an established process for deciding how much ‘weight’ a person’s wishes will have: ITW v Z [2009] EWCOP 2525 [35]. It’s always nice to have a process, but this one misses the deeper point. A process for comparing some sorts of wishes to other sorts of wishes is not a process for comparing a person’s wishes to some possible consequences.

So, how do you compare a person’s wishes to some possible consequences? Mr Justice Peter Jackson says this is ‘not mechanistic but intuitive’ (at [129]), and I suspect this is a common reaction. Never mind apples and oranges, judges are being asked to compare apples and the colour purple, or oranges and the concept of irony. And this is why Kierkegaard’s criticism of the Hegelians might be apt. When there is no obvious way to compare the two columns, then the temptation to stack them side by side, say ‘balance’, and present some result, just so long as it doesn’t shock convention, will be strong. This case (at [19-22]) is an example: Mrs J’s wishes are thrown into a general evaluation of consequences, and then a result somehow appears (and the fact that the unanimous opinion of ‘experienced professionals’ prevails is suggestive). There is, to adapt Kierkegaard’s words, ‘no explanation of how [balancing] takes place’.

Even with the horribly difficult job that judges in the Court of Protection have, this is not inevitable. Mr Justice Newton in St George’s v P [2015] EWCOP 42 (at [33] – [45]), for instance, slowly and methodically works his way through different factors and concerns in a case about withdrawing treatment from a man in a minimally concious state. This is nothing like the pseudo-mathematical balancing of consequences in Re A, but neither is it an empty process. Although the reasons are particular to that case and to that man, the explanations for the weight given to them are publicly understandable. It is possible to agree with them or disagree with them when you know what they are.

The metaphor of balancing is perfectly appropriate for a case like this, but it describes the result better than the process of legal reasoning. The process is nearly always more difficult than working out how much grain you have.