Social Policy & Society (2017) 16:3, 469–481
C
Cambridge University Press 2017 doi:10.1017/S1474746417000069
Disability and Vulnerability: Challenging the
Capacity/Incapacity Binary
Beverley Clough
Centre for Law and Social Justice, School of Law, University of Leeds
E-mail: b.clough@leeds.ac.uk
This article engages with emerging debates in law and feminist philosophy around the
concept of vulnerability. Central to this is the call to re-imagine and re-frame vulnerability
as universal – as something which is experienced by all individuals, by virtue of their
humanity and context as social beings. The implications of this for laws and policies
predicated on groups or categories as ‘being vulnerable’ will be explored in this article,
using the concept of mental capacity as an example of how the boundar y between
capacity and incapacity can be contested through this lens. The article will critically
consider the Mental Capacity Act 2005 and associated literature, such as Court of
Protection cases, the House of Lords Select Committee’s post-legislative scrutiny and
Serious Case Reviews, which demonstrate the growing concern about the inadequacy of
the binary between capacity and incapacity. This in turn provokes a challenge to accepted
wisdom in the context of disability more broadly, inviting us to think in particular about the
responses to perceived vulnerability that are currently deemed appropriate. Insights from
the legal literature invite further exchanges with social policy theorists as to the concept
of vulnerability and its challenges and implications for law and policy.
Key words: Mental Capacity Act 2005, vulnerability, responsive state, disability, social
model of disability.
Introduction
As commentators have noted – and this themed section is testament to – normative
theorising of the concept of vulnerability and its implications for policy is increasingly
common, and we are embroiled in a ‘vulnerability zeitgeist’ (Brown, 2014). Given
concerns about the way in which vulnerability discourse may be used to create dangerous
new categorisations and binaries, and to effect social control and paternalistic intervention
in the lives of those classed as vulnerable, it is important that we do not valorise
vulnerability as a guide for new modes of legal and policy reform. This is perhaps
most salient in contexts such as disability and adult social care, where the concept
of vulnerability is eyed with suspicion due to its perceived synonymous relationship with
weakness and powerlessness, and its traditional ascription to disabled people to enable
controlling interventions.
This article engages critically with the range of literature that has developed more
recently, which conceptualises vulnerability as a shared, universal ontological experience
for all human beings, by virtue of our nature as interdependent social beings (Turner, 2006;
Fineman, 2008, 2014, 2015; Fineman and Grear, 2013). The theorising of vulnerability
which has developed through the works of feminist legal scholars and philosophers
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Beverley Clough
challenges traditional conceptions of vulnerability as an internal characteristic, demon-
strating the ways in which seeing vulnerability as a universal embodied condition shifts
the focus onto the structural and institutional conditions that expose this vulnerability.
Central to this idea of universal vulnerability is a call to reimagine the legal subject. As
Fineman stresses, the dominant political and legal subject presents an impoverished view
of humanity, presented as being a competent, capable, self-sufficient and self-actualising
agent who ‘seeks liberty or autonomy as a primary value’ (Fineman, 2015: 617).
As will be demonstrated in this article, this liberal subject frame has particular
influence in the context of mental capacity law. Much in modern health and social
care policy is about ‘choice’ (see Wilson, 2014), and this is closely aligned to the concept
of capacity – indeed, in some respects it is reserved for those with capacity (see, for
example, the No Secrets supporting guidance: Department of Health, 2000, para. 6.21).
The statutory framework created by the Mental Capacity Act 2005 (MCA) demarcates
the boundaries of the concept of mental capacity and the legal responses available if
an individual is deemed to lack mental capacity. There is here an overlap with the
‘vulnerable adult’ concept, as individuals who could fall within the boundaries of the
MCA (those with an impairment of, or disturbance in the functioning of, the mind or
brain – see s2(1)) may also fall within the definition of the ‘vulnerable adult’, previously
defined as:
A person aged 18 or over who is or who may be in need of community care services by reason
of a mental or other disability, age or illness; and who is or who may be unable to protect
himself or herself against significant harm or exploitation. (No Secrets, Department of Health,
2000:2.3)
Now the terminology has been shifted to ‘adult at risk’ by the Care Act 2014 (s42), as
a result of criticisms of the No Secrets definition as being too status focused. Whether this
shift in terminology will have any impact on our legal approach to vulnerability remains to
be seen, and a wholesale shift is perhaps unlikely, particularly given that the link between
the impairment or ill health and vulnerability still persists and is central to the definition.
What is clear through the interaction of the ‘vulnerable adult’/’adult at risk’ concept
with the concept of mental capacity is that binaries, with legal implications, begin to
develop between capacity/incapacity and vulnerable/invulnerable. An intimate link is
created, threading ideas of impairment, ill health and need for social care to vulnerability
and potential incapacity. This then opens up the legal route to see decisions as legally
ineffective, whereas those who are deemed to have capacity are seen as autonomous and
thus entitled to make their own legally effective decisions and exercise choice.
This article demonstrates that more recent theoretical accounts of vulnerability
provide a mechanism not only to challenge the status-based conceptualisations of
vulnerability and incapacity, but also to challenge the legal responses and interventions.
I suggest that a positive reclaiming of the concept of universal vulnerability can have
profound consequences for law and policy here. In an approach which resonates with the
social model of disability, focusing on the internal decision-making abilities of individuals
is seen to marginalise the multi-variant and multi-dimensional factors which impact
on meaningful decision making for all individuals, regardless of impairment. Such an
approach demonstrates the need for attentiveness to the structural and institutional factors
that interact to reveal particular experiences of vulnerabilities, and for careful responses
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Disability and Vulnerability
to these. Such responses should have, at their core, a focus on facilitating capabilities and
resilience through systemic and institutional shifts.
After considering current critiques of the MCA, stemming from academic
commentary, post-legislative scrutiny and Serious Case Reviews, the article will move
on to consider the normative utility of vulnerability theory in furthering these criticisms.
This article will develop this literature by demonstrating the theoretical threads linking
the concept of universal vulnerability with the social model of disability, in order to argue
for a more responsive state – and legal framework – with implications reaching beyond
mental capacity law.
The Mental Capacity Act 2005
In the context of adult social care and health care, the Mental Capacity Act 2005 (MCA)
draws the parameters of legitimate legal intervention in relation to adults deemed to
lack mental capacity. Thus, the distinction between mental capacity and incapacity is
crucial. In essence, if an adult is deemed to have mental capacity to make a particular
decision, then that decision cannot be interfered with – it is seen as a manifestation
of the individual’s choice and self-determination, and, as such, worthy of respect as an
autonomous decision. Conversely, if an individual is deemed to lack mental capacity in
relation to the particular decision, then it is deemed to not be an autonomous decision
worthy of such respect, and a substitute decision can be made by another in their ‘best
interests’.
The Act governs a wide range of decisions, from the minutiae of day-to-day decisions
such as what to eat, what to wear and where to go, to medical treatment decisions,
residence decisions, decisions as to contact with particular individuals, marriage and
capacity to consent to sex. One of the key principles guiding the Act is the presumption
of mental capacity (MCA, s1), which means that everyone is assumed to have mental
capacity to make a decision, unless it can be proved that they lack capacity. Section 2
outlines the diagnostic element of mental capacity, outlining how ‘a person lacks capacity
in relation to a matter if at the material time he is unable to make a decision for himself
in relation to the matter because of an impairment of, or a disturbance in the functioning
of, the mind or brain’. Section 3 of the Act goes on to define what is meant by ‘unable
to make a decision’ and, if a finding of incapacity is made, the Act further lays out that
decisions must be made for that individual in their ‘best interests’ (MCA, s4).
At the core of a capacity assessment is the ‘causal nexus’ between the impairment of,
or disturbance in the functioning of, the mind or brain, and the inability to understand,
retain, use or weigh information or communicate the decision. Essentially, if there is no
cognitive impairment present, then capacity will not be called into question. Likewise,
even if there is an impairment present, the individual will be deemed to have capacity if
it cannot be shown that it is that impairment which is causing the inability to understand,
use, weigh or communicate information. The result of this assessment of mental capacity
is crucial; if an individual is deemed to have capacity, then their decision will be respected
and will be deemed to be autonomous. On the other hand, if they are deemed to lack
mental capacity, then a decision can be taken for them provided that it is in their best
interests. The problematic nature of this stark binary was recognised by the House of
Lords Select Committee (2014) in their post-legislative scrutiny of the statute, noting
among other things that:
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Beverley Clough
The presumption of capacity, in particular, is widely misunderstood by those involved in
care. It is sometimes used to support non-intervention or poor care, leaving vulnerable adults
exposed to risk of harm. In some cases this is because professionals struggle to understand
how to apply the principle in practice. In other cases, the evidence suggests the principle
has been deliberately misappropriated to avoid taking responsibility for a vulnerable adult.
(Para. 3)
This has been echoed in the findings of a number of Serious Case Reviews in the
past, including those related to Steven Hoskin and Gemma Hayter, which have been
set up to see what lessons can be learnt following the murders of individuals who
have been known to adult health or social care services (see, for example, Flynn,
2007; McAteer, 2011). In relation to Steven Hoskin, disengagement with services
had been respected as his ‘choice’, which is an aspect that faced heavy criticism.
Whilst the presumption of capacity underpinning the MCA noted above was seen as
positive in terms of preventing widespread and unrestrained interventions into people’s
decisions, it can prove to be problematic in practice (Keywood, 2010: 109). Because
Steven was presumed to have mental capacity, this was perceived as a barrier to
service engagement, as this would ostensibly go against his expressed wishes. The
concept of mental capacity in these cases artificially constructs the individual deemed
to have mental capacity as being autonomous. The creation of this stark binary
perpetuates the ‘othering’ of those deemed to lack capacity, and justifies differential
legal treatment. Those who do not fit neatly into this constructed binary fall outside of the
margins.
Similar issues with the stark binary are demonstrated in the case law in the Court of
Protection, which makes decisions on financial and welfare matters for people deemed to
lack capacity, as well as making declarations as to capacity and best interests. Herring and
Wall outline some of the problematic case law in which this binary plays out, particularly
in the context of capacity to consent to sex, consent to contact and consent to residence
(Herring and Wall, 2015; Herring, 2016). Such cases pose difficulties for the MCA as they
involve complex issues of interpersonal relationships that trouble the decision-specific,
functional test for capacity, which tends to be abstract and side-lines the situational context
of decision making (also see Clough, 2014).
One such case, PC & Anor v. City of York Council [2013] EWCA Civ 478 demonstrates
this well. The case involved the core issue of whether PC had capacity to decide whether
to live with her husband upon his release from imprisonment for serious sexual offences.
PC had mild learning disabilities and had married PC whilst he was in prison. It was
found that as she had had the capacity to marry she must now be taken to have capacity
to decide to perform the terms of the marriage contract. As such, PC was held to have
mental capacity to decide on whether to reside with her husband. Lewison LJ summed
up the position thus:
adult autonomy is such that people are free to make unwise decisions, provided that they have
the capacity to decide . . . We must leave PC free to make her own decision, and hope that
everything turns out well in the end. (Para. 64, emphasis added)
In IM v. LM & Others [2014] EWCA Civ 37 questions arose as to LM’s capacity in
relation to contact with her partner AB, and also her capacity to consent to sex with him.
This was against a background of ‘aggressive’ behavior and possible abuse.
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In the Court of Appeal, it was held that LM did have capacity to consent to sex with
her partner. Embedded in the judgement and similar cases on consent to sex are allusions
to pragmatic concerns and the limitations of the MCA in encapsulating the reality of
decision making (para. 77). Decision-making of this nature involves complex, separate
decisions which interconnect over indefinite periods of time, the nature of which the MCA
may struggle to capture. Autonomy also played a significant part in the reasoning:
the information typically . . . regarded by persons of full capacity as relevant to the decision
whether to consent to sexual relations is relatively limited. The temptation to expand that field
of information in an attempt to simulate more widely informed decision-making is likely to
lead to . . . both paternalism and a derogation from personal autonomy. (Para. 82)
Whilst seductively simple reasoning, this is not without criticism (see Clough, 2014;
Herring, 2016). Derbyshire CC v.AC[2014] EWCOP 38, demonstrates the continuing
dissatisfaction with this approach. Here, Cobb J discusses the statement of the medical
expert, that AC, ‘said that even if she did not want sex she would have to go along with it
as she wants to be “lovey dovey”’ (para. 33). Cobb J expressed his unease with this and
the way that the test for capacity to consent to sex does not include this exercise of choice
within its scope (para. 36).
Concerns such as those highlighted here have led to calls for a more responsive
legal framework that recognises that a richer, more nuanced understanding of autonomy
is necessary if we are advocating for meaningful opportunities for the expression of
choice and control over our lives. Hinging this on concepts such as mental capacity
works to internalise the perceived vulnerability and link it to the existence of a cognitive
impairment, rather than considering the structural and institutional norms that can
construct, exacerbate and intensify the experience of vulnerability.
Theorising vulnerability and the ‘problem’ of disability
Engaging with vulnerability theory allows us to problematise and engage with this binary
between capacity and incapacity, and to trouble some of the foundational legal and
policy norms that underpin it. As will be seen, this in turn calls for us to consider the
adequacy of the responses enabled under the current legal framework, and importantly
to reflect outwards on the implications of this analysis for broader legal and policy
structures. This section will give a brief overview of key literature which has developed
our theoretical approach to vulnerability, particularly in the context of legal discourse, and
outline how this poses particular salient issues in the context of disability. It will emphasise
the way in which the disability critique of vulnerability can conversely be harnessed to
strengthen our understanding of universal vulnerability in light of a nuanced, social
model understanding by focusing on the interaction between the embodied individual
and their contextual situation in relation to institutions, structures and cultural norms.
The central point here is that far from reinforcing categories of ‘vulnerable’ groups,
the universal understanding of vulnerability as shared ontological experience allows
us to begin to dismantle and question the binaries, categories and resultant legal and
policy responses currently engendered and perpetuated in law. It helps us to reframe our
ontological experience as a shared and often positive interaction between our bodies
and our context, including through relations with others and institutions. It also brings
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