Decision-Making, Legal Capacity and Neuroscience: Implications for Mental Health Laws

Laws

Bernadette McSherry¹ 

[1] Melbourne Social Equity Institute, University of Melbourne, 201 Grattan Street, Parkville, Victoria 3010, Australia; E-Mail

关键词: legal capacity;    mental capacity;    decision-making;    mental health laws;    neuroscience;   

DOI  :  10.3390/laws4020125

来源: mdpi

【 摘 要 】

Neuroscientific endeavours to uncover the causes of severe mental impairments may be viewed as supporting arguments for capacity-based mental health laws that enable compulsory detention and treatment. This article explores the tensions between clinical, human rights and legal concepts of “capacity”. It is argued that capacity-based mental health laws, rather than providing a progressive approach to law reform, may simply reinforce presumptions that those with mental impairments completely lack decision-making capacity and thereby should not be afforded legal capacity. A better approach may be to shift the current focus on notions of capacity to socio-economic obligations under the Convention on the Rights of Persons with Disabilities.

【 授权许可】

CC BY   
© 2015 by the authors; licensee MDPI, Basel, Switzerland.