Capacity, Participation and Values in Comparative Legal Perspective

Front Cover
Capacity, Participation and Values in Comparative Legal Perspective
Copyright information
Table of Contents
List of Tables and Boxes
Notes on Contributors
Acknowledgements
1 Introduction: Values, Participation and Mental Capacity Laws in International Comparative Perspective
	Introduction
	The chapters
	Conclusion
2 Mental Capacity Law in England and Wales: A Value-Laden Jurisdiction
	Introduction
	Values in the legislative framing
	The status of P’s subjective values
	P’s participation in decision-making
	Critical evaluation
	Conclusion
	Acknowledgement
3 Mental Capacity Regimes Approach to Values and Participation in Proceedings Involving Individuals with Impaired Decision-Making Capacity in Scotland
	Introduction
	The human rights framework in Scotland and mental health and capacity law
	Adults with Incapacity (Scotland) Act 2000
		The ‘incapable adult’
		Adults with Incapacity Act principles promoting participation
			Benefit and not best interests
			Least restrictive option
			The adult’s voice
			Adults with Incapacity Act and advance planning measures
		Limitations on the adult’s voice and participation
	Mental Health (Care and Treatment) (Scotland) Act 2003
		Significantly impaired decision-making ability
		Mental Health Act principles promoting participation
		Mental Health Act and advance planning: psychiatric advance statements
	Discussion: the presence of values
	Conclusion
4 The Fusion Approach to Mental Capacity Law in Northern Ireland: Possibilities and Challenges
	Introduction
	The Northern Ireland context
	Participation and values in the development of the Mental Capacity Act (Northern Ireland) 2016
	Participation and values in the Mental Capacity Act (Northern Ireland) 2016
	Implementation and ongoing debates
	Conclusion
5 Judging Values in a Time of Transition: An Irish Perspective
	Introduction
	Evolving judicial values in a time of transition
		Capacity and the role of law
		Values in the legal process
			Transparency in the exercise of the wardship jurisdiction
			Participation in the judicial process
		Values in substantive resolution
			Values in a time of transition
				Values in cases of conflict
				Values in treatment withholding/withdrawal
			Changing medical values
	Looking forward: judicial values in the operation of the Assisted Decision-Making (Capacity) Act
		Procedural values in the Assisted Decision-Making (Capacity) Act
		Substantive values in the Assisted Decision-Making (Capacity) Act
	Conclusion
6 US Laws Relating to Decision-Making on Behalf of P
	Introduction
	Some aspects of federalism in the US
	Capacity determinations
	Appointments of guardians
	The interests of P
	Values in deciding for P
	New prospects for consideration of P’s current values?
	Conclusion
7 Indigenous Peoples with Disabilities and Canadian Mental Capacity Law
	Introduction
	Overview of legislative framing: supported decision-making in Canada
	Values and principles in Canadian mental capacity law
	Supported decision-making in Canada: the British Columbia Representation Agreement Act 1996
	Substitute decision-making in Canada
	British Columbia’s substitute decision-making legislation
	Indigenous peoples with disabilities in Canada: lived experiences of exclusion
	Challenging exclusion: law reform and policy recommendations
	Conclusion
8 Capacity, Participation and Values in Australian Guardianship Laws
	Introduction
	A short introduction to Australian federalism
	The first generation of guardianship law: the inherent jurisdiction of Australian superior courts
	The second generation of Australian guardianship laws
	The third generation of guardianship laws and the Convention on the Rights of Persons with Disabilities
	Values in Australian guardianship laws
		Jurisdictional workloads
		Determining incapacity
		The interests, wishes and values of the incapacitated person
		Supporting people to have capacity or regain it
		The incapacitated person’s participation in decision-making under legislation
		The importance of procedures and guidelines
	Conclusion
9 Navigating Values in Aotearoa New Zealand
	Introduction
		Introduction and outline
		Constitutional framework and human rights protection
	Legislative framework for capacity
		The main capacity statutes
		Mental health legislation
	Values
		Protection of Personal and Property Rights Act 1988
		Substance Addiction (Compulsory Assessment and Treatment) Act 2017
		Mental Health (Compulsory Assessment and Treatment) Act 1992 and Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
	Discussion
	Conclusion
10 Values and Participation of Individuals Without Mental Capacity in Hong Kong
	Introduction
	Overview of legislative framing
		Definitions
		The dual regimes
		Medical and dental treatment
	Values in the legislative framing and the status of P’s subjective values
		Part IVB: guardianship
		Part II: Committee
		Inherent jurisdiction
	Participation in proceedings
	Critical evaluation
	Conclusion
	Acknowledgement
11 Asian Values and Confucianism: How P’s Ability to Participate in Court Proceedings in Singapore Is Influenced by P’s Cultural Milieu
	Introduction
	Mental Capacity Act 2008 and Family Justice Rules 2014 laws that allow for P’s participation in the legal process
		Principles of Singapore’s Mental Capacity Act 2008
		Legal test of capacity
		Notifying P of proceedings
		Circumstances where P must be notified
		Matters in respect of which P has to be notified
		Court requiring the attendance of P and litigation representation
	P’s Participation in proceedings
		Defining P’s participation in proceedings’
		Cases of P’s participation in proceedings
	Current legal barriers to P’s participation in legal proceedings
		Simplification of the deputyship application process
	Extent of P’s wishes and feelings being considered under the ‘best interests framework’
	A culture of surrogate decision-making?
	Conclusion
	Acknowledgement
12 Respect for the Will and Preferences of People with Mental Disorders in German Law
	Introduction
	Guardianship law and PsychKHG
		PsychKHG
		Guardianship law
	The UN Convention on the Rights of Persons with Disabilities
	Patients’ rights law
	Principles and procedures of the law on guardianship
		Appointment of the guardian
		Duties and tasks of the guardian
		Procedural law: the role of courts and the participation of P
	Substitute decision-making for medical decisions
		Advance directives
		Previously expressed treatment preferences and presumed will
	Involuntary interventions
		Involuntary hospital admission
		Coercive measures
		Involuntary treatment
	Conclusion
13 The Place of Values and P’s Participation in Mental Capacity Law: Themes, Synergies and Tensions
	Introduction
	Principled tensions in mental capacity law
	Challenges to the myth of ‘liberal neutrality’ in mental capacity law
		Roles and objectivity
		Law as an objectively detached system
	Relationship between the individual and the state
		Conceptions of the individual and the scope of the law
		Colonialism and oppression
		The nature of the individual’s participation
	Conclusion
Index