Introduction

Since the start of the 21st century, policy developments and legal practice have increasingly sought to express and implement changes that recognise the equality and rights of persons with mental impairments, including persons with learning disabilities and mental disorders. A great deal of academic scholarship, legal commentary and policy recommendations have focused attention on internal analyses of specific jurisdictions – for example, academic and practice-based discussions of mental capacity law in England and Wales have flourished in the time leading up to and since the instantiation of the Mental Capacity Act 2005 (MCA). Equally, much scholarship has focused on the changing human rights landscape since the advent of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), with particular attention on the meaning of its requirements and jurisdiction-specific adherence to human rights aspirations. Dialogue between these jurisdiction-specific and human rights analyses has become increasingly common. Less common – but no less important – is an international comparative perspective across different legal approaches to mental capacity law, to encourage learning and critical reflection based on a closer analysis of how different jurisdictions grapple with common issues and imperatives around assuring the empowerment and participation in decision-making by, with and for individuals with impairments.

The purpose of this edited collection is to advance this much-needed international comparative contribution to mental capacity law. Our particular focus in the volume is to spur on a comparative-oriented conversation around substantive commonalities and divergences in normative orientation and practical application embedded in different legal frameworks. Regarding normative orientation, we are particularly keen to critically identify how values and assumptions are built into laws (formally or by convention) about persons and personal decision-making, and what this is taken to mean for the roles of law, institutions, and legal and other professionals. Crucially, we are interested against that to understand what those laws mean for the place and voice of persons whose decisions are governed by such laws. Therefore, in practical application we are not only interested in the letter of different laws, but also how they function; including what they miss, or whether and how they may be inequitable in their application or generate outcomes that are opposed to their (apparent) rationales.

Introduction

This volume has taken an international approach to learning about, and critically exploring, how legal systems may, or may fail to, assure the (meaningful) participation in decision-making by, with and for individuals who are subject to mental capacity laws (P). Equally, the contributors have explained how laws bring individuals’ values into personal decisionmaking, or present barriers to this, and how values beyond the person's may also feature in such decisions. We invited contributions based on a single template of contextual and law-focused questions across the book's authors, and yet we see significant distinctions in both the practical and the socioethical situations among the respective jurisdictions that the book examines. These are, unsurprisingly, in part explicable by reference to sociocultural, demographic, historical and institutional (including professional hegemonic) distinctions between the different places that the book looks at. They are also a consequence of the distinct critical perspectives and orientations across the book's authorship. And they are explicable given distinct legal framings and assumptions, which prove significant even among the common law systems and their shared traditions that form the focus of the majority of the contributions.

We may begin to collect our own reflections in this concluding chapter by noting that the book's inquiry is pitched as being about mental capacity law. Even among those jurisdictions who share their legal heritage with systems that have expressly enacted ‘mental (in)capacity’ laws, this already presents its own distinct vocabulary, as we see in Stavert's chapter (Chapter 3) on the AWIA in Scotland; likewise the language of guardianship, as discussions of Australia (Chapter 8), the US (Chapter 6) and Hong Kong (Chapter 10) indicate. Accordingly, part of the comparative exercise is in understanding the substance and practical import of technical language when making observations and evaluations. ‘P’ will have been a designation that is alien to readers in many legal systems, and even within legal systems that use the term this designation is not well known outside the realms of mental capacity law. The lack of explicit reference to guardianship laws in the book's title may seem surprising.