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Autonomy, capacity and vulnerable adults: filling the gaps in the Mental Capacity Act

Published online by Cambridge University Press:  02 January 2018

Jonathan Herring*
Exeter College Oxford, University of Otago
Jesse Wall*
Exeter College Oxford, University of Otago
Jonathan Herring (corresponding author), Exeter College Oxford, Turl Street, Oxford OX3 0DU, UK. Email:
Jesse Wall, Faculty of Law, University of Otago, PO Box 56, Dunedin 9054, New Zealand. Email:


This paper explores the distinction between being autonomous and having capacity for the purposes of the Mental Capacity Act. These include where a person misuses affective attitudes in making the decision; where a person's decision is not authentic to their values; and where the Mental Capacity Act prevents use of the context or outcome of the decision in assessing capacity. These gaps mean that a person can be found to have capacity, even though they are not properly autonomous. This, we argue, justifies the courts’ use of the inherent jurisdiction to protect vulnerable adults who, while having capacity are not able to act autonomously.

Research Article
Copyright © Society of Legal Scholars 2015 

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1. For a powerful example, see J Benedet and I Grant ‘Sexual assault and the meaning of power and authority for women with mental disabilities’ (2014) 22 Fem L S 131.

2. Our primary focus in this paper is on a person's capacity to make decisions. There is always then the question of whether they have exercised their capacity in a particular situation.

3. [2013] EWCA 478 (Civ).

4. Ibid, at [51].

5. We will not here seek to discuss whether autonomy is desirable or whether standard accounts of autonomy are correct. For current purposes we will assume both of these: but see eg O O'Neill ‘Autonomy: the emperor's new clothes’ (2003) 77 Proc Aristotelian Soc'y 1.

6. G Richardson ‘Mental disabilities and the law from substitute to supported decision-making’ (2012) 65 (1) Curr Legal Probs 333 at 334.

7. For the avoidance of doubt, by using the word ‘affective’ we are not suggesting that all values are emotion based.

8. Dr A v NHS Trust [2013] EWHC 2442 (COP).

9. P Bielby ‘The conflation of competence and capacity in English medical law: a philosophical critique’ (2005) 8 Med, Health Care & Phil 357.

10. For a detailed analysis, see eg J Herring Medical Law and Ethics (Oxford: Oxford University Press, 4th edn, 2013) ch 4.

11. Mental Capacity Act 2005, s 1(2).

12. Ibid, s 3(1).

13. Ibid, s 2.

14. PC v York CC [2013] EWCA Civ 478 at [58].

15. M Madden Dempsey ‘Victimless conduct and the Volenti maxim: how consent works’ (2013) 7 Crim Law & Phil 11.

16. J Herring ‘Rape and the definition of consent’ (2014) 26 Nat'l L Sch India Rev 62.

17. Madden Dempsey, above n 15, at 20.

18. K Atkins ‘Autonomy and the subjective character of experience’ (2000) 17 J Appl Phil 71.

19. C Mackenzie ‘Relational autonomy, normative authority and perfectionism’ (2008) 39 J Soc Phil 512.

20. Re W (A Minor) [1993] Fam 64.

21. P Appelbaum ‘Ought we to require emotional capacity as part of decisional competence?’ (1998) 8 Kennedy Inst Ethics J 377.

22. D Whiting ‘Evaluating medico-legal decisional competency criteria’ (2015) 23(2) Health Care Analysis 181.

23. This is not to say that in practice (as opposed to the formal legal position), a finding of lack of capacity will lead to decisions being made on a person's behalf that can impact on their autonomy.

24. Whiting, above n 22; although see eg S Gilmore and J Herring ‘“No” is the hardest word: consent and children's autonomy’ (2013) 23 Child & Family L Q 3, for a rejection of this view.

25. In this, and in other ways, legal capacity (the focus of this paper) can be seen as very different from mental capacity.

26. C MacKenzie and W Rogers ‘Autonomy, vulnerability and capacity: a philosophical analysis’ (2013) 9 Int'l J L Context 37 at 42.

27. Practical reasoning can be contrasted with theoretical reasoning: the latter is concerned with asserting matters of fact and asserting explanations of these facts.

28. L Charland ‘Is Mr. Spock mentally competent? Competence to consent and emotion’ (1998) 5 Phil, Psychiatry & Psychol 67 at 72.

29. Ibid, at 73.

30. Mr Spock is a character in the television show Star Trek. He is portrayed as having considerable knowledge of facts, but lacking any capacity for emotion.

31. A Buchanan and C Brock Deciding for Others: The Ethics of Surrogate Decision Making (Cambridge, UK: Cambridge University Press, 1989) p 24.

32. Mental Capacity Act 2005, s 3(1).

33. T Hope et al ‘Agency, ambivalence and authenticity: the many ways in which anorexia nervosa can affect autonomy’ (2013) 9 Int'l J L Context 20 at 29.

34. Ibid, at 28.

35. F Freyenhagen and T O'Shea ‘Hidden substance: mental disorder as a challenge to normatively neutral accounts of autonomy’ (2013) 9 Int'l J L Context 53 at 56.

36. Ibid.

37. Ibid.

38. [2013] EWHC 2322 (COP).

39. P Bartlett ‘The United Nations Convention on the Rights of Persons with Disabilities and mental health law’ (2012) 75 Mod L Rev 752.

40. Although it is arguable that the person with the disability is treated more favourably in that they can be protected by the Mental Capacity Act 2005.

41. MacKenzie and Rogers, above n 26, at 43.

42. Ibid.

43. The Bible, Romans 7:15.

44. Arguably, the supported decision model advocated in, for example, the UN Convention on the Rights of Persons with Disabilities would enable, although not require, a more diachronic approach to decision making that would more sensitive to the first-order and second-order desires.

45. A Cronin ‘Transplants save lives, defending the double veto does not: a reply to Wilkinson’ (2007) 33 J Med Ethics 219 at 220.

46. [1997] EWCA Civ 1361.

47. J Herring ‘The caesarean section cases and the supremacy of autonomy’ in M Freeman (ed) Law and Medicine (Oxford: Oxford University Press, 2001).

48. Hope et al, above n 33, at 31.

49. J Herring Relational Autonomy and Family Law (Cham: Springer International, 2014).

50. Given the emphasis placed on supported decision making in the UN Convention on the Rights of Persons with Disabilities, this may be particularly significant.

51. T Grovier ‘Self-trust, autonomy and self-esteem’ (1993) 8 Hypatia 99.

52. C McLeod Self-Trust and Reproductive Autonomy (Cambridge, MA: The MIT Press, 2002).

53. See J Herring ‘The serious wrong of domestic abuse and the loss of control defence’ in A Reed and M Bohlander (eds) Loss of Control and Diminished Responsibility (Aldershot: Ashgate, 2011).

54. C Mckenzie ‘Relational autonomy, normative authority and perfectionism’ (2008) 39 J Soc Phil 512 at 513.

55. D Meyers ‘Decentralizing autonomy: five faces of selfhood’ in J Christman and J Anderson (eds) Autonomy and the Challenges to Liberalism (Cambridge, UK: Cambridge University Press, 2005).

56. C Mackenzie ‘Critical reflection, self-knowledge, and the emotions’ (2002) 5 Phil'l Expl'ns 186 at 190; see also C Mackenzie ‘On bodily autonomy’ in SK Toombs (ed) Handbook of Phenomenology and Medicine (Dordrecht: Kluwer Academic, 2001) p 430.

57. [2013] EWHC 2322 (COP).

58. ‘What matters is [the] ability to carry out the processes involved in making the decision – and not the outcome’: Department of Constitutional Affairs 2007, Code of Practice, s 4.2.

59. [2010] EWHC 1549 (Fam).

60. IL v LM [2014] EWCA 37 (Civ).

61. J Herring ‘Mistaken sex’ [2005] Crim L Rev 511.

62. [2012] EWHC 49 (COP).

63. Indeed, this appears to have influenced the Court of Appeal in IL v LM [2014] EWCA 37 (Civ) to support an act-specific test.

64. Mental Capacity Act 2005, s 1(5).

65. PC v York, at [59].

66. Department of Constitutional Affairs Mental Capacity Act: Code of Practice (London: TSO, 2007) para 2.7.

67. PC v City of York [2013] EWCA Civ 478, [59]; see J Herring and J Wall ‘Capacity to cohabit: hoping “everything turns out well in the end”’ [2013] Child & Fam L Q 417.

68. N Banner ‘Unreasonable reasons: normative judgements in the assessment of mental capacity’ (2012) 18 J Eval Clinical Prac 1038 at 1039.

69. [2013] EWCA Civ 478.

70. Ibid, para 64.

71. For more on these requirements, see Herring and Wall, above n 67, at 417.

72. J Coggan ‘Varied and principled understandings of autonomy in English law: justifiable inconsistency or blinkered moralism? (2007) 15 Health Care Analysis 235.

73. J Herring ‘Losing it, losing what? The law and dementia’ [2009] Child & Fam L Q 3.

74. It is possible that the courts could start again with a new way of interpreting the MCA, but it is hard to imagine the courts taking a complete volte-face at this stage.

75. B Hewson ‘“Neither midwives nor rainmakers” – why DL is wrong’ [2013] Pub L 451.

76. [2012] EWCA Civ 253.

77. DL v A Local Authority [63].

78. Ibid, at [62].

79. Re SA (Vulnerable adult with capacity: marriage) [2005] EWHC 2942, [2006] 1 FLR 867.

80. Hewson, above n 75.

81. [2010] EWHC 2665 (Fam).