2 - An Essential Role for Values in Assessments of Capacity

Summary

This chapter will explore a key problem with the current law’s approach – namely, that it is impossible to assess a person’s capacity to ‘use or weigh’ the information relevant to a decision without engaging with the values that underpin their decision. It will suggest that while some recourse to the person’s values is unavoidable, the current approach gives assessors ample room to invoke other values when assessing the person’s capacity, thus creating space for paternalistic judgments to go unchecked. Despite this risk, it will be claimed that in many of the cases in which this occurs, underpinning the assessment is in fact a concern that the values or beliefs that motivate a person’s decision have been affected by an illness or impairment, such that the decision reached is not one that the agent would have made, but for that disorder or impairment. The current law cannot account for this, and so assessors are forced to manipulate the test for capacity instead. While this prevents unnecessary harm, it has the effect of obscuring the value-laden and highly controversial claims that may underpin such decisions, which remain insulated from scrutiny or challenge.