The spaces of mental capacity law: moving beyond the binaries

This Early Career Fellowship project is funded by the Independent Social Research Foundation and seeks to reinvigorate debates in mental capacity law, and disability more broadly, through interrogating the key concepts and binaries that currently frame and constrain legal analysis.

The research aims to provide a contextual understanding of mental capacity law and the processes underpinning it, in order to enable broader reflection on disability and embodiment beyond the traditional confines of mental capacity literature. Literature in this context currently flattens the debate and decontextualizes and dehumanizes the legal subject. Through engaging with relational theories which emphasise the spatial and temporal dimensions – as well as the actors who inhabit these dimensions – we get a more nuanced account of the ways in which disempowerment is created and reinforced through these relations. It will adopt a socio-legal methodology, through theoretical inquiry drawing on critical insights from literature on intra-action and new materialisms (Barad) vulnerability (Fineman, Mackenzie) and chronotopes of law (Valverde). This will be informed by genealogical analysis of legal and policy materials including statutes, judgments, guidance and Serious Case Reviews to go beyond the text and expose the processes which create or reinforce the boundaries of the current legal space and lens.

This interdisciplinary exploration will provide an important provocation in global debates surrounding the UN Convention on the Rights of Persons with Disabilities (UNCRPD) which has been hailed as ushering in a ‘paradigm shift’ in disability rights. This will not occur if we are constrained by the current boundaries of our legal approach. The mental capacity framework is built upon a number of binaries- capacity/incapacity; autonomy/paternalism; carer/cared-for; empowerment/protection; public law/private law. Without critically disrupting these pervasive binaries, and a more grounded, contextual understanding of the processes and generating effects underpinning them, we cannot move beyond them to give effect to the transformative potential of the UNCRPD. The research will further the ambitions of the ISRF to advance interdisciplinary work in a context in which it is currently lacking.

Publications and outputs

Clough BA (2018) New Legal Landscapes: (Re)Constructing the Boundaries of Mental Capacity Law. Medical Law Review, 26 (2), pp. 246-275.

Project website