Mental capacity in the (civil) law: capacity, autonomy, and vulnerability.

• Author: Hall, Margaret Isabel
• Position: Canada, Quebec

This paper examines mental capacity as a medico-legal social construct and concludes that, while the construct works reasonably well in the contexts of property-related transactions and health-treatment decisions, it is deeply problematic and is a source of dysfunction in the context of guardianship and guardianship-type interventions. There is nothing natural, compelling, or necessary about the concept of mental capacity, and the author proposes an alternate construct more consistent with the purpose of guardianship and guardianship-type interventions: vulnerability. As the capacity construct is deeply enmeshed with a traditional liberal theory of autonomy (the capacity-autonomy equation or paradigm), so the vulnerability construct described here is more consistent with a theory of relational autonomy. The author contends that the conceptual framing provided by the capacity-autonomy paradigm in the guardianship context has precluded the coherent theorization of vulnerability, and she suggests a more coherent framework for doing so by drawing on theories of equity and relational autonomy.

Ce texte examine la capacite mentale comme construction sociale medico-legale et conclut que, bien que cette construction fonctionne raisonnablement bien dans les contextes lies aux transactions relatives a la propriete et aux decisions de traitement en sante, elle est tres problematique et constitue une source de dysfonctionnement dans le cadre de la tutelle et des autres interventions de ce type. Il n'y a rien de naturel, de convaincant, ou de necessaire relativement au concept de capacite mentale. L'auteure propose une autre construction plus conforme a l'objet de la tutelle et des autres interventions de ce type : la vulnerabilite. Comme la construction de la capacite est intimement liee a une theorie liberale traditionnelle de l'autonomie (l'equation ou le paradigme capacite-autonomie), la vulnerabilite decrite ici est une construction plus coherente avec une theorie de l'autonomie relationnelle. L'auteure affirme que le cadre conceptuel fourni par le paradigme des capacites d'autonomie dans le contexte de tutelle a empeche la theorisation coherente de la vulnerabilite et elle suggere un cadre plus coherent pour le faire en s'appuyant sur les theories de l'equite et de l'autonomie relationnelle.

Introduction I. Autonomy and the Sovereign Self: The Role of the Mental Capacity Threshold II. Conceptualizing the Mental Capacity Construct III. Capacity in Context: Property, Health, and Guardianship A. Property-Related Transactions B. Health Treatment C. Guardianship and Guardianship-Type Interventions IV. After Capacity: Theorizing Vulnerability A. Situating Vulnerability: Relational Autonomy B. Vulnerability and Public Response: The Problem of Definition Conclusion Introduction

Mental capacity (1) is a social construct clothed in the naturalizing language of a biological fact. Like all social constructs, mental capacity persists and is used because it works as an effective mechanism for achieving a valuable social purpose or, more precisely, set of purposes. Mental capacity is an especially useful mechanism in the adult guardianship context, allowing for the (apparent) reconciliation of socially valuable, but ideologically inconsistent, purposes: the legally enforced and legally enforceable protection of individual autonomy (2) and the realization of important social policy goals that seem to require interference with that autonomy. (3) This dual function is especially useful where the subject of the guardianship inquiry is an older adult who was previously considered to possess mental capacity, in which case the loss of autonomy is put in issue. These cases will almost always involve a diagnosis of dementia, itself a contested construct, and the simultaneously authoritative and mystifying language of biomedicine will play a crucial role in the "finding" of mental capacity--or incapacity--conferring a particular quality of "out-there-ness" (4) or truth.

Mental capacity is neither natural nor inevitable, however, and the incoherence of mental capacity in the primarily medical, embodied settings where capacity is substantively evaluated (an evaluation that is subsequently relied on for the purposes of legal action) is a source of significant confusion and dissatisfaction. That incoherence, I suggest, makes the assessment of abstract mental capacity that is required by adult guardianship legislation--perhaps especially by modern, decision-specific adult guardianship legislation--substantively impossible, fuelling the endless search for the perfect "capacimeter" and the tensions between the medical professionals charged with finding capacity and the legal professionals who wring their hands at medicine's apparent inability to get it right. That inability, most often attributed to the avowed paternalism of the medical profession, necessarily flows from the mental capacity construct itself.

Furthermore, I suggest, the ideological paradigm in which the capacity construct is situated and of which it is an essential part--the liberal autonomy ideal is itself, in this context, deeply problematic and even cruel. If we agree with William James that "[t]ruth happens to an idea," (5) the idea of mental capacity, for the purposes of adult guardianship, should no longer be treated as a real or true description of the world and its workings, allowing instead for the construction of a new and more workable truth in this context. (6)

1. Autonomy and the Sovereign Self: The Role of the Mental Capacity Threshold

   Despite the ubiquitousness of autonomy talk across discourses, "[a]bout the only features held constant from one author to another are that autonomy is a feature of persons and that it is a desirable quality to have." (7) So what does autonomy mean in, and for, the law? Martha Fine-man has identified autonomy, defined in terms of freedom from interference by others, as one of the foundational myths of the American legal and political system, reflected in the Declaration of Independence, the US Constitution, and the US Bill of Rights. (8) As an idea associated with liberty, freedom from interference, and self-control, the Supreme Court of Canada has found a "degree of personal autonomy over important decisions intimately affecting [one's] private li[fe]" to be included in the right to life, liberty, and security of the person protected by section 7 of the Canadian Charter of Rights and Freedoms. (9) Autonomy as personal liberty is also fundamental to the common law and to the personal rights to noninterference protected by the torts of trespass to the person, trespass to property, and false imprisonment.

   Autonomy has a very specific meaning and function, as it relates to the legal idea of mental capacity. Capacity, in law, serves as the effective threshold of autonomy, dividing the autonomous, on the one side, from the non-autonomous, on the other, on the basis of an individual's ability to engage in the process of rational (and therefore autonomous) thought, explained as the ability to exercise one's will to reflect upon, and choose between desires, and to adopt those chosen as one's "own". (10) On neither side of the threshold is the law formally concerned with the substantively autonomous quality (11) of the individual's thought or action. Evaluating the

   substantive choices and actions of those who have capacity is conceptualized as actively undermining their now established autonomy, (12) while actions and choices on the other side of the threshold can never be autonomous, whatever their content. Understood in these terms, the autonomous thought process parallels the dominant medical paradigm of cognitive capacity, in which the physically healthy and unimpaired brain is taken to possess the capacity for rational (and therefore autonomous) thought, which may then be impaired by disease or injury or, in some cases, may be "impaired" from birth. (13)

   Recognizing and locating autonomy in the process of self-rule making, rather than in the content of the rules made, avoids assigning social value to particular choices and ways of living, thereby limiting the "tyranny of the majority" and paternalistic interference by the state. (14) Indeed, so long as the decision-making process is "autonomous", the protection of individual autonomy requires a value-neutral stance in relation to the substance of choices and behaviours. Public, and even private, indifference to the substantively non-autonomous, private choices and behaviours of others is conceptualized as essential to the protection of individual autonomy. The characterization of a matter as public works to change this dynamic; the characterization Of children and their protection from harm as matters of public interest justifies the scrutiny and evaluation of the substantive decisions and actions of their caregivers, for example. This characterization is also essential to the criminal law, in which matters that are deemed criminal, and therefore subject to the state's criminal law power, are those that are identified as harming public morality and public safety. (And so, while my self-ruling autonomy is undeniably abridged by the criminal prohibition on polygamy, for example, that restriction is theoretically justified by the threat my actions would pose to public order.) (15) Mental capacity, in contrast, remains private; legal interference is justified only where self-rule is, or has become, factually impossible. In the void, the state has a responsibility to act.

   In the context of property-related transactions, donor autonomy has an ideologically potent, but effectively symbolic, role. The idea of unfettered individual liberty to dispose of one's property as one wishes, whether wisely or foolishly, is a fundamental--even sacred--tenet of Anglo-Canadian law. (18) The individual autonomy at stake in these cases is, however, very different in kind and quality from autonomy...