Margaret Isabel Hall (Thompson Rivers University – Faculty of Law) has posted Mental Capacity in the (Civil) Law: Capacity, Autonomy and Vulnerability (McGill Law Journal, Forthcoming) on SSRN. Here is the abstract:
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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 a source of dysfunction in the context of guardianship and guardianship-type interventions. There is nothing natural, compelling or necessary about 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 theorizing of vulnerability and she suggests a framework for doing so drawing on theories of equity and relational autonomy.