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Capacity, value neutrality and the ability to consider the future1

  • Jillian Craigie (a1)


Calls for the adoption of a universal capacity approach to replace dedicated mental health law are motivated by the idea that the measures designed to protect patient autonomy in legislation such as the Mental Capacity Act 2005 should apply to everyone, including people with a psychiatric diagnosis. In this article it is argued that a diachronic perspective on questions of mental capacity is necessary if capacity law is to play this broader role, but that employing this perspective in assessments of capacity undermines central patient autonomy preserving features of the legislation, which presents a moral dilemma.

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The online version of this article is published within an Open Access environment subject to the conditions of the Creative Commons Attribution-NonCommercial-ShareAlike licence . The written permission of Cambridge University Press must be obtained for commercial re-use.

Corresponding author


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Thanks go to Natalie Banner, Fabian Freyenhagen, Jonathan Glover, Gareth Owen, Wayne Martin, Genevra Richardson, Katie Steele, George Szmukler and Jo Wolff for their very helpful comments on earlier drafts of this article. Versions of the article were given at the Normative Neutrality and the Theory of Autonomy conference at the University of Essex, the Annual Conference of the Association for Legal and Social Philosophy at Queen's University Belfast, and the Medical Law and Ethics Research Seminar at King's College London, which helped a great deal its development. The article was written with the support of the Wellcome Trust [094910].



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Addis, Donna Rose and Tippett, Lynette J. (2004) ‘Memory of Myself: Autobiographical Memory and Identity in Alzheimer's Disease’, Memory 12(1): 5674.
Andreou, Chrisoula (2008) ‘Making a Clean Break: Addiction and Ulysses Contracts’, Bioethics 22(1): 2531.
Appelbaum, Paul (1998) ‘Ought We to Require Emotional Capacity as Part of Decisional Competence?’, Kennedy Institute of Ethics Journal 8(4): 377–89.
Baron, Jonathan (1994) Thinking and Deciding. Cambridge: Cambridge University Press.
Bartlett, Peter (2012) ‘The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law’, Modern Law Review 75(5): 752–78.
BBC News (2005) ‘Hockney Leads Smoking Ban Protest.’ Available at:
Bratman, Michael (2000) ‘Reflection, Planning, and Temporally Extended Agency’, Philosophical Review 109(1): 3561.
Breden, Torsten Marcus and Vollmann, Jochen (2004) ‘The Cognitive Based Approach of Capacity Assessment in Psychiatry: A Philosophical Critique of the MacCAT-T’, Health Care Analysis 12(4): 273–83.
Caddell, Lisa S. and Clare, Linda (2012) ‘Studying the Self in People with Dementia: How Might We Proceed?’ Dementia, advance online publication, doi: 10.1177/1471301211418486.
Carney, Terry (2009) ‘Anorexia: A Role for Law in Therapy?Psychiatry, Psychology and Law 16(1): 4159.
Charland, Louis C. (1998) ‘Appreciation and Emotion: Theoretical Reflections on the MacArthur Treatment Competence Study’, Kennedy Institute of Ethics Journal 8(4): 359–76.
Craigie, Jillian (2011) ‘Competence, Practical Rationality and What a Patient Values’, Bioethics 25(6): 326–33.
Department of health (1999) Review of the Mental Health Act 1983 Report of the Expert Committee. London: Department of Health.
Doherty, Tom (2011) ‘On Whether to Prefer Pain to Pass’, Ethics 121(3): 521–37.
Dresser, Rebecca (1984) ‘Bound to Treatment: The Ulysses Contract’, Hastings Center Report 14(3): 1316.
Dworkin, Ronald (1994) Life's Dominion. New York: Vintage Books.
Edwards, Craig (2010) ‘Beyond Mental Competence’, Journal of Applied Philosophy 27(3): 273–89.
Elliott, Carl (1997) ‘Caring About Risks’, Archives of General Psychiatry 54: 113–16.
Frederick, Shane (2003) ‘Time Preference and Personal Identity’, in Loewenstein, George, Read, Daniel and Baumeister, Roy (eds), Time and Decision: Economic and Psychological Perspectives on Intertemporal Choice. New York: Russell Sage Foundation, 89113.
Frederick, Shane (2006) ‘Valuing Future Life and Future Lives: A Framework for Understanding Discounting’, Journal of Economic Psychology 27: 667–80.
Fuchs, Thomas (2008) ‘The Phenomenology of Body and Space in Depression’, Philosophy 36(1): 6984.
Gostin, Larry O. (1981) ‘Observations on Consent to Treatment and Review of Clinical Judgment in Psychiatry: A Discussion Paper’, Journal of the Royal Society of Medicine 74: 742–52.
Halpern, Jodi (2012) ‘When Concretized Emotion–Belief Complexes Derail Decision-making Capacity’, Bioethics 26(2): 108116.
Holroyd, Jules (2012) ‘Clarifying Capacity: Value and Reasons’, in Radoilska, Lubomira (ed.), Autonomy and Mental Disorder. Oxford: Oxford University Press, 145–69.
Korsgaard, Christine (1989) ‘Personal Identity and the Unity of Agency’, Philosophy & Public Affairs 18(2): 101132.
Mackenzie, Robin and Watts, John (2011) ‘Including Emotionality in Tests of Competence: How Does Neurodiversity Affect Measures of Free Will and Agency in Medical Decision-making?’, American Journal of Bioethics Neuroscience 2(3): 2736.
Maclean, Alasdair R. (2006) ‘Advance Directives, Future Selves and Decision-making’, Medical Law Review 14: 291320.
Mill, John Stuart (1910/1972) Utilitarianism, On Liberty, and Considerations on Representative Government. London: J. M. Dent & Sons.
Mischel, Walter (2004) ‘Integrative Science of the Person’, Annual Review of Psychology 55: 122.
Nagel, Thomas (1970) The Possibility of Altruism. Princeton: Princeton University Press.
Okai, David, Owen, Gareth, Mcguire, Hugh, Singh, Swaran, Churchill, Rachel and Hotopf, Matthew (2007) ‘Mental Capacity in Psychiatric Patients’, British Journal of Psychiatry 191: 291–97.
Parfit, Derek (1983) ‘Rationality and Time’, Proceedings of the Aristotelian Society 84: 4782.
Parfit, Derek (1984) Reasons and Persons. Oxford: Oxford University Press.
Plant, Raymond (2011) ‘Freedom, Coercion, Necessary Goods and the Rule of Law’, Jurisprudence 2(1): 116.
Ratcliffe, Matthew (2012) ‘Varieties of Temporal Experience in Depression’, Journal of Medicine and Philosophy 37(2): 114–38.
Rawls, John (1971) A Theory of Justice. Cambridge, MA: Harvard University Press.
Rees, Neil (2009) ‘Learning from the Past, Looking to the Future: Is Victorian Mental Health Law Ripe for Reform?’, Psychiatry, Psychology and Law 16(1): 6989.
Rudnick, Abraham (2002) ‘Depression and Competence to Refuse Psychiatric Treatment’, Journal of Medical Ethics 28: 151–55.
Schwartz, Robert (1999) ‘Autonomy, Futility and the Limits of Medicine’, in Kuhse, Helga and Singer, Peter (eds), Bioethics: An Anthology. Oxford: Blackwell, 518–22.
Sjöstrand, Manne and Helgesson, Gert (2008) ‘Coercive Treatment and Autonomy in Psychiatry’, Bioethics 22(2): 113–20.
Strawson, Galen (2005) ‘Against Narrativity’, in Strawson, Galen (ed.), Free Will? Oxford: Blackwell Publishing, 6386.
Szmukler, George and Dawson, John (2011) ‘Reducing Discrimination in Mental Health Law – The ‘Fusion' of Incapacity and Mental Health Legislation’, in Kallert, Thomas, Mezzich, Juan and Monahan, John (eds), Coercive Treatment in Psychiatry: Clinical, Legal and Ethical Aspects. Oxford: Wiley & Sons, 97119.
Tan, Jacinta, Hope, Tony, Stewart, Anne and Fitzpatrick, Ray (2006) ‘Competence to Make Treatment Decisions in Anorexia Nervosa: Thinking Processes and Values’, Philosophy, Psychiatry and Psychology 13: 267–82.
Woolf, Marie (2005) ‘Hockney Blows Smoke on Labour's Plan to Ban Tobacco’, The Independent, 29 September 2005.


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