'People like that': realising the social model in mental capacity jurisprudence

Abstract

Through critical analysis of the law's traditional response to mental disorders in mental health and mental capacity law, it will be argued that a medicalised model of disability has been predominant, and still permeates jurisprudence in this area. It will be suggested that insights from the social model and relational understandings of rights can highlight the ways in which wider contextual and structural relations can impact upon the lived experience of mental impairment. Moreover, an understanding of the various dimensions of mental illness can help elucidate how the law can respond effectively to structural, institutional, and contextual factors in order to facilitate the enjoyment of purported rights and values. In light of this, it will further be argued that the lingering precedence given to a narrow, medical view of cognitive impairment is outmoded given the more richly textured understanding of cognitive impairments which has recently emerged. The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) has harnessed the insights from the social model of disability and the capabilities approach to justice, and will be presented as the legal articulation of such understandings. This article seeks to build upon these understandings of disability and social justice and argue for the need for a more responsive state and judiciary in addressing the concerns highlighted by the UNCRPD and embedding these into judicial discourse.

Keywords: Capabilities; Deprivation of Liberty; Responsive State; Social Model of Disability; United Nations Convention on the Rights of Persons with Disabilities.