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

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  • Bernadette McSherry

    (Melbourne Social Equity Institute, University of Melbourne, 201 Grattan Street, Parkville, Victoria 3010, Australia)

Abstract

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.

Suggested Citation

  • Bernadette McSherry, 2015. "Decision-Making, Legal Capacity and Neuroscience: Implications for Mental Health Laws," Laws, MDPI, vol. 4(2), pages 1-14, April.
    • Handle: RePEc:gam:jlawss:v:4:y:2015:i:2:p:125-138:d:48785
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    References listed on IDEAS

    as
    1. Terry Carney, 2015. "Supported Decision-Making for People with Cognitive Impairments: An Australian Perspective?," Laws, MDPI, vol. 4(1), pages 1-23, January.
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