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Introduction

Mental capacity[1] is a social construct clothed in the naturalizing language of a biological fact. Like all social constructs, mental capacity persists and is used because it works as an effective mechanism for achieving a valuable social purpose or, more precisely, set of purposes. Mental capacity is an especially useful mechanism in the adult guardianship context, allowing for the (apparent) reconciliation of socially valuable, but ideologically inconsistent, purposes: the legally enforced and legally enforceable protection of individual autonomy[2] and the realization of important social policy goals that seem to require interference with that autonomy.[3] This dual function is especially useful where the subject of the guardianship inquiry is an older adult who was previously considered to possess mental capacity, in which case the loss of autonomy is put in issue. These cases will almost always involve a diagnosis of dementia, itself a contested construct, and the simultaneously authoritative and mystifying language of biomedicine will play a crucial role in the “finding” of mental capacity—or incapacity—conferring a particular quality of “out-there-ness”[4] or truth.

Mental capacity is neither natural nor inevitable, however, and the incoherence of mental capacity in the primarily medical, embodied settings where capacity is substantively evaluated (an evaluation that is subsequently relied on for the purposes of legal action) is a source of significant confusion and dissatisfaction. That incoherence, I suggest, makes the assessment of abstract mental capacity that is required by adult guardianship legislation—perhaps especially by modern, decision-specific adult guardianship legislation—substantively impossible, fuelling the endless search for the perfect “capacimeter” and the tensions between the medical professionals charged with finding capacity and the legal professionals who wring their hands at medicine’s apparent inability to get it right. That inability, most often attributed to the avowed paternalism of the medical profession, necessarily flows from the mental capacity construct itself.

Furthermore, I suggest, the ideological paradigm in which the capacity construct is situated and of which it is an essential part—the liberal autonomy ideal—is itself, in this context, deeply problematic and even cruel. If we agree with William James that “[t]ruth happens to an idea,”[5] the idea of mental capacity, for the purposes of adult guardianship, should no longer be treated as a real or true description of the world and its workings, allowing instead for the construction of a new and more workable truth in this context.[6]

I. Autonomy and the Sovereign Self: The Role of the Mental Capacity Threshold

Despite the ubiquitousness of autonomy talk across discourses, “[a]bout the only features held constant from one author to another are that autonomy is a feature of persons and that it is a desirable quality to have.”[7] So what does autonomy mean in, and for, the law? Martha Fineman has identified autonomy, defined in terms of freedom from interference by others, as one of the foundational myths of the American legal and political system, reflected in the Declaration of Independence, the US Constitution, and the US Bill of Rights.[8] As an idea associated with liberty, freedom from interference, and self-control, the Supreme Court of Canada has found a “degree of personal autonomy over important decisions intimately affecting [one’s] private li[fe]” to be included in the right to life, liberty, and security of the person protected by section 7 of the Canadian Charter of Rights and Freedoms.[9] Autonomy as personal liberty is also fundamental to the common law and to the personal rights to non-interference protected by the torts of trespass to the person, trespass to property, and false imprisonment.

Autonomy has a very specific meaning and function, as it relates to the legal idea of mental capacity. Capacity, in law, serves as the effective threshold of autonomy, dividing the autonomous, on the one side, from the non-autonomous, on the other, on the basis of an individual’s ability to engage in the process of rational (and therefore autonomous) thought, explained as the ability to exercise one’s will to reflect upon, and choose between desires, and to adopt those chosen as one’s “own”.[10] On neither side of the threshold is the law formally concerned with the substantively autonomous quality[11] of the individual’s thought or action. Evaluating the substantive choices and actions of those who have capacity is conceptualized as actively undermining their now established autonomy,[12] while actions and choices on the other side of the threshold can never be autonomous, whatever their content. Understood in these terms, the autonomous thought process parallels the dominant medical paradigm of cognitive capacity, in which the physically healthy and unimpaired brain is taken to possess the capacity for rational (and therefore autonomous) thought, which may then be impaired by disease or injury or, in some cases, may be “impaired” from birth.[13]

Recognizing and locating autonomy in the process of self-rule making, rather than in the content of the rules made, avoids assigning social value to particular choices and ways of living, thereby limiting the “tyranny of the majority” and paternalistic interference by the state.[14] Indeed, so long as the decision-making process is “autonomous”, the protection of individual autonomy requires a value-neutral stance in relation to the substance of choices and behaviours. Public, and even private, indifference to the substantively non-autonomous, private choices and behaviours of others is conceptualized as essential to the protection of individual autonomy. The characterization of a matter as public works to change this dynamic; the characterization of children and their protection from harm as matters of public interest justifies the scrutiny and evaluation of the substantive decisions and actions of their caregivers, for example. This characterization is also essential to the criminal law, in which matters that are deemed criminal, and therefore subject to the state’s criminal law power, are those that are identified as harming public morality and public safety. (And so, while my self-ruling autonomy is undeniably abridged by the criminal prohibition on polygamy, for example, that restriction is theoretically justified by the threat my actions would pose to public order.)[15] Mental capacity, in contrast, remains private; legal interference is justified only where self-rule is, or has become, factually impossible. In the void, the state has a responsibility to act.

In the context of property-related transactions, donor autonomy has an ideologically potent, but effectively symbolic, role. The idea of unfettered individual liberty to dispose of one’s property as one wishes, whether wisely or foolishly, is a fundamental—even sacred—tenet of Anglo-Canadian law.[16] The individual autonomy at stake in these cases is, however, very different in kind and quality from autonomy as it is engaged in the other contexts considered here. Unlike those other contexts, the decision in question is past—there is no question of future constraint—and there is no continuing or potential physical impact on the person in question. Furthermore, the donor in the majority of cases involving discrete property transactions will not be an actual participant in the proceedings; he or she will be dead or incapable, and the real contestants will be those who benefit from the transaction and those who would benefit were it set aside. Autonomy, here, is symbolically important but, in fact, of no real value to the absent donor.

In the context of health care decisions, by contrast, the subject of the capacity finding is very much present, and the decision whether to proceed with a particular course of treatment will have the most direct impact on that individual. Autonomy, in this context, is bound up with those physical-integrity interests that have long been protected by the trespass torts, which, prior to legislation in this area, created and enforced the requirement of consent to health treatment. As the Supreme Court of Canada explained in Starson v. Swayze:

Ordinarily at law, the value of autonomy prevails over the value of effective medical treatment. No matter how ill a person, no matter how likely deterioration or death, it is for that person and that person alone to decide whether to accept a proposed medical treatment. However, where the individual is incompetent, or lacks the capacity, to make the decision, the law may override his or her wishes.[17]

Autonomy is significantly more problematic in the context of guardianship, which necessarily—as required by the very purpose of guardianship and guardianship-type interventions—proceeds from a finding of projected, ongoing loss of capacity, concerning ongoing, non-particularized courses of activity—as opposed to the ascertained and discrete decisions, past and pending, at issue in the property and health contexts. These are necessary features of guardianship interventions derived from their underlying purpose, a purpose which has not changed (because it cannot change) during the last fifteen years of guardianship reform and the introduction of co-decision-making models: to provide a social response to the needs of some individuals for ongoing assistance in order to prevent the loss of assets—and the hardships attendant on impecuniosity in old age—and physical harm.

Formally, of course, the loss of personhood is no longer considered to follow a finding of incapacity for guardianship purposes in law or in medicine. At the more pervasive social level, however, the taken-for-granted embodiment of autonomy—the rational, independent, and self-maximizing figure of the “autonomous man”—necessarily and automatically works to depersonalize the post-capacity individual. A person found to lack capacity now and for the projected future is effectively and necessarily positioned as a non-person, a failed (and not merely misruled) state.[18] Exhortations to recognize personhood, identity, and value in persons with dementia (the “senile” and therefore non-self-governing, in the language of Feinberg’s analysis of autonomy and the autonomous) call, in effect, for the transposition of the individual’s ghost as he or she existed in the past onto his or her present, embodied form.[19] The manifestations of “illness” are separated from the “real” person underneath. This is the response required by the terms of the capacity-autonomy equation and is, within those terms, the only means of recognizing some continuing form of personhood, and thereby securing the rights to which persons are entitled, after capacity is lost. In so doing, I suggest that the capacity-autonomy equation effectively precludes a deeper understanding of personhood as embodied after capacity is lost.[20]

One response to the drastic impact of a finding of incapacity in the context of adult guardianship has been to minimize the likelihood that a person will be found to lack capacity, through legislation or through instruments of medical evaluation.[21] This approach, while theoretically maximizing autonomy, frustrates the fundamental purpose of guardianship: to provide ongoing assistance in order to prevent harm. Another approach has been to articulate more precisely the kind of decision that an individual is expected to need ongoing assistance with, in an attempt to resemble, insofar as possible, the kind of discrete, pending decisions at issue in the health care context.[22] In reality, however, persons are unlikely to need guardianship assistance only with certain discrete and singular types of decisions and not with others. At the same time, persons who need assistance only with decision making, and who are willing to accept that assistance, will almost certainly have made private and informal arrangements for doing so without the need for a guardianship order.[23] This phenomenon almost certainly explains the negligible use of the co-decision maker order where it is available, in Saskatchewan, in favour of a more plenary guardianship).[24]

I suggest another, more radical—but ultimately more effective—approach to the dilemma of the capacity-autonomy equation in the guardianship-intervention context: the removal of capacity as the criteria for intervention. The personhood and autonomy (understood through the theoretical lens of relational autonomy, discussed below) of those individuals who fall below the capacity threshold can be given recognition only, I suggest, where the threshold itself is removed.

This suggestion appears less extreme on a close and denaturalizing examination of how the mental capacity construct is found in this context. I will argue that there is nothing inevitable or necessary about capacity—nothing real that must be respected, obeyed, or followed—and that, if the construct in this context is—as I assert—deeply problematic, an alternate construct can, and must, be developed. I suggest that the provision of assistance with kindness (i.e., listening carefully and responding to the thoughts, fears, and wishes of others), and with respect, thoughtfulness, and sophistication regarding the kind of assistance that will be most helpful, is most appropriately understood as a social response to vulnerability. Accordingly, vulnerability provides a more coherent and workable construct in this context.

II. Conceptualizing the Mental Capacity Construct

As a concept in law and in medicine, mental capacity refers generally to a person’s intellectual ability to understand and, on the basis of that understanding, to make a decision. Without the required, underlying mental capacity, a person’s apparent choice is conceptualized as not, truly, his or her own and genuine decision. In this way, the lack of mental capacity creates one of a limited number of exceptions to the general legal rule of non-interference with personal choices, however foolish, as a structural guarantor of personal liberty or autonomy. (Indeed, non-recognition protects the autonomy of the individual by refusing to enforce or recognize decisions that are not, truly, his or her own.)

Defined in these terms, mental capacity is essentially cognitive, describing the ability to make a rational decision[25] as a real, interior mental quality, although the mentally capable person may choose not to make a rational decision as a matter of personal preference and expression. The medical profession, therefore, as the designated experts in matters related to cognition, will always play a key and authoritative role in the evaluation of capacity, even where the ultimate purpose of that evaluation is, in the formal sense, legal (e.g., appointing a guardian, setting aside a property transaction, deciding who will consent to medical treatment).

The characterization of cognitive mental capacity as a hard and medically ascertainable fact is key to the way in which capacity is found, or not found, in the law. (Although as we shall see, that process works differently in different legal contexts, where the finding of capacity serves different purposes.) The modernizing, decision-based trend in adult guardianship legislation, as opposed to the traditional, diagnosis-based approach to capacity and capacity assessment, retains and refines this core understanding of mental capacity as a scientifically provable “bio-fact”: the modern question is whether an individual has the cognitive capacity to make a particular kind of decision, in contrast to the more global incapacity implied by the dementia diagnosis in the traditional model. Parallel developments in medical approaches to mental capacity assessment, including the assessment of performance in addition to the measurement of decision-domain specific capacities through cognitive testing tools, are similarly presented as providing a more accurate account of the underlying biofact.

From a legal perspective, “X has dementia” appears to provide a satisfying account of the individual’s internal mental process, without the need for ideologically troubling references to the substantive nature of X’s choices and behaviours (e.g., “X is making large cash gifts to a young woman he met online”; “X engages strangers in conversation about his supposed affair with the Queen”). The difficulty lies in the nature of the dementia diagnosis, which unlike, for instance, a cancerous cell on a slide, is arrived at through observation of a person’s speech, actions, and behaviours (e.g., “X is making large cash gifts to a young woman he met online” or “X engages strangers in conversation about his supposed affair with the Queen”). Dr. Y’s diagnosis is the end point of this process of observation and categorization, of which diagnosis is the bare statement. The decisive scientific and objective language of that diagnosis—like the language of the cell on the slide—obscures, to the law’s eye, the nature of the process of observation that underlies it. In the language of autonomy, the bare diagnosis asserts a definitive and objective truth about the individual’s ability to engage in an autonomous thought process. The process, of which the diagnosis is the end result, necessarily depends on the diagnosed person’s substantive choices and behaviours, requiring judgment on the part of the observer. This is not to say that “dementia” is meaningless; the concept has meaning as a clustering of external indicia that are interpreted as indicating something specific about the brain. But dementia must be understood as a medical construct[26] that gathers together and contains these behavioural indicia within a discursive boundary, and through the language of diagnosis, provides for some future action to take place (admittance to a care facility, for example).

Cognitive tests such as the mini-mental state examination (MMSE) and the MacArthur competence assessment tool-treatment (MacCAT-T), where provided to support “mere” diagnosis, work in a similar way. As ostensibly objective, scientific measures, they result in rate-able scores that obscure the evaluative processes behind them. These testing tools have come under criticism from the medical community responsible for implementing them[27]—while retaining the character of medically ascertainable bio-fact outside of that community—as insufficiently connected to the kinds of decision-making capacity under evaluation.[28] One response to that criticism has been the identification of a more functional approach to testing,[29] including an assessment of performance (through patient and collateral interviews), alongside diagnosis and standardized cognitive-screening-tool scoring, as best practice.[30] Another is the continuing proliferation of more decision-specific assessment tools.[31] Importantly, these developments in the medical process of capacity evaluation are presented as providing a more accurate mirror or description of the individual’s objective, internal state—the capacity bio-fact. From the law’s perspective, however, these medical developments are opaque and ultimately irrelevant; the medical finding of capacity (or the lack thereof) works as an authoritative bio-fact, whether contained in the statement “X has dementia” or in a function-based assessment report.

As neither the dementia diagnosis nor the cognitive score is analogous to the paradigmatic bio-fact of the cancerous cell on the slide, nor is the mental capacity construct. A finding of mental capacity is a particular judgment about human beings that is made for one of several distinct purposes, from which distinct and specific consequences flow (despite the ceaseless medical quest for a more perfect, objective “capacimeter”).[32] The terms of the judgment will reflect the purposes for which it is made and the consequences that flow from it. By “terms”, here, I mean the way in which the judgment will be made, who will make it, and the information that will be recognized as open to consideration, as well as the information that will, in fact, be considered.

III. Capacity in Context: Property, Health, and Guardianship

Three distinct legal contexts in which mental capacity is positioned as a central factor will be considered here: property-related transactions, including wills; consent to medical or health treatment; and guardianship and guardianship-type interventions. All three are civil (as opposed to criminal) law contexts; all three are particularly likely to involve older adults as their subjects, and accordingly, some form of dementia—itself a contested construct—is likely to be involved.

In each of these contexts, mental capacity works to permit an interference with individual decision making (although the language of “decisions” is truly apposite only in the context of property-related transfers and transactions),[33] which would otherwise be unjustified. In this way, and for this reason, mental capacity is often conceptualized as a threshold. The implications of this threshold are most significant in the guardianship context, both on a conceptual and a practical and embodied level (i.e., the projected and continuing oversight of, and engagement in, the day-to-day life of another). The social and ideological identification of capacity with autonomy—and, on that basis, with personhood itself[34]—charges the finding of an ongoing, projected incapacity in a way that is qualitatively distinct from the other contexts considered here.

A. Property-Related Transactions

In contrast to the other two contexts considered here, the capacity inquiry carried out for the purpose of setting aside or enforcing property-related transactions is a legally controlled process. It is delivered by a court, most likely in the absence of a decision-specific medical capacity assessment preceding the impugned transaction. Evidence that capacity was found by a lawyer or a notary preceding the transaction will be highly relevant, although not conclusive. Corroborating non-medical evidence will also be key and may come from a number of sources. The task in these cases is to recreate, as completely as possible through a relatively thick description, the circumstances of the original transaction. Evidence from family members and other persons familiar with the donor at the time regarding the donor’s behaviour will be relevant, together with whatever medical evidence is available.

These cases are notable for the lengthy, detailed, and comprehensive narratives they provide, which are assembled from a broad reach of sources. In the case of Re Elsie Jones,[35] for example, which considered a mother’s capacity to transfer property into joint ownership with her daughter, Maureen, the court noted that the donor had received legal advice from an “experienced ... solicitor”, who would have been equally experienced in assessing client capacity. But the court went on to consider the following factors in coming to a decision regarding Ms. Jones’s capacity at the time of the transfer: the relative financial positions of the parties (the mother, her daughter, and her two sons); the changing nature of Ms. Jones’s relationship with Maureen; Ms. Jones’s diagnosis of vascular dementia, in 2003, by Dr. Sheldon; Ms. Jones’s belief that her son was stealing from her; the involvement of the police and the mental health team following Ms. Jones’s complaints about her son; an interview with Dr. Sheldon regarding Ms. Jones’s attitude toward her son; Dr. Sheldon’s notes regarding long-standing dysfunction in the family, as recounted by Maureen; Dr. Sheldon’s examination of Ms. Jones on the day following the transfer (no mental capacity assessment was carried out preceding the transfer); extensive evidence from Maureen regarding her understanding of her mother’s capacity throughout this period; and evidence provided by Ms. Jones’s accountant regarding his encounters with Ms. Jones over a number of years. At the conclusion of this lengthy and detailed narrative, the court held that Ms. Jones did not have the required mental capacity at the time of the transfer.

Many cases involving property-related transactions where the mental capacity of the donor is impugned will also involve claims of undue influence[36] (or, less frequently, unconscionability or both undue influence and unconscionability). From the point of view of the plaintiff—the donor or disappointed heir—the outcome of a successful undue influence or unconscionability challenge and of a successful capacity challenge will be the same: the transaction will be set aside, with a resulting redistribution of assets. A claim of undue influence requires, doctrinally, a different and a separate analysis, and the factors central to undue influence—the relative weakness or vulnerability of the donor in the context of a relationship of dependence (which raises the presumption of undue influence) or the existence of manipulation or coercion (actual undue influence)—are, theoretically, irrelevant to the capacity question.[37] On a formal level, mental capacity and undue influence—or unconscionability—are considered, in a given case, as parallel analyses, concerned with, and considering different, factual aspects of the case: the relational or contextual aspects going to undue influence or unconscionability, and the objective or cognitive aspects going to capacity. As discussed and set out in the cases, however, these analyses are less distinct on either a textual or a rhetorical level, with the court’s conclusions on each point coming instead at the end of a holistic account of the transaction and the context in which it took place.[38] Evidence of cognitive ability[39] is embedded in what is essentially a life story, as that story surrounds and gives meaning to the disputed transaction.

B. Health Treatment

Capacity assessment in the health care decision-making context[40] is, in contrast, almost completely controlled by health professionals in a clinical setting, as opposed to the kind of legally controlled processes of historical recreation described above. The consequence of a finding of incapacity, in the health care context, will be the identification or appointment of a substitute decision maker, or if the applicable legislation allows, the following of the person’s past wishes as set out in an “advance directive”.[41] The finding of capacity may subsequently be challenged, but retrospective legal review will be very much the exception to the rule. Even where that finding is challenged, its basis—the medical assessment of capacity to consent to treatment—ensures a continuing level of medical evidentiary control that will be missing in the property cases. If treatment has (or has not) taken place, no retrospective evaluation can set aside that action and rearrange the outcome accordingly, unlike in the property cases discussed above. The remedy, if any, will be damages.[42]

Medical actors are not mere passive enactors of the legal framework, and distinctly medical values and ideologies will inform how the legal framework is applied. Traditional protectionist or paternalist medical principles, with no direct analog in law, have historically worked to present the central issue in health care decision making as a tension between the paternalistic “best interests” proclivities of medical professionals and the legally protected autonomy rights of patients. From the late 1960s onward, however, patient autonomy has been recognized within the bioethics discourse and, on the formal level, within medical decision-making practice, as the pre-eminent value.[43] This recognition more closely aligns medical norms with legal norms, with capacity conceptualized as enforcing the true or genuine (and therefore autonomous) choices of individuals through the non-recognition of false (i.e., incapable) instruction.[44]

C. Guardianship and Guardianship-Type Interventions[45]

Guardianship is a legal process with legal consequences (appointing a substitute decision maker empowered to make legally recognized decisions on behalf of another. Unlike a medical diagnosis, treatment is not the (formal) outcome of a finding of incapacity in this context.[46] Generally speaking, guardians may be appointed through two processes: by court appointment or through a process of “statutory guardianship”, on the basis of a certificate of incapacity issued by a medical professional, as specified in the legislation.[47]

Despite this overtly legal character, however, the guardianship process is highly medicalized. Even in the context of court-appointed guardianships, medical capacity assessment will be required and will almost always be controlling, in dramatic contrast to the wide discussion of evidence found in the (retrospective) property transaction cases. In property cases, relevant medical evidence may well be missing or cobbled together from non-capacity-specific medical encounters (visits to the family doctor, for example).[48] In contrast, guardianship applications will be preceded by a specific capacity assessment that is undertaken for that purpose, and that assessment will virtually always control the outcome of the case. Legal disagreement with the medical assessment is rare and, when it occurs, is almost always the result of particular factual situations where competing medical assessments are put before the court, laying bare the constructed (as opposed to natural or “out-there”) character of the capacity assessment and, indeed, the dementia diagnosis that frequently underlies it. The case of British Columbia (Public Trustee) v. Batiuk[49] provides a rare example. In that case, which involved a hotly contested application brought by the Public Guardian and Trustee that would have had the ultimate effect of removing pair of caregivers from the home of a wealthy widow, the following medical diagnoses and findings on capacity were before the court:

  • That Mrs. Batiuk (Mrs. B) was “incapable of managing her affairs as a result of ‘mental infirmity due to chronic paranoid schizophrenia, cerebral atrophy and organic brain syndrome particularly evidenced by cognitive impairment including impaired orientation, attention, memory and language’”;

  • That Mrs. B was “competent to make personal decisions but incapable of giving a power of attorney” (and that further assessment was required);

  • That Mrs. B was probably “incapable of managing her affairs by reason of mental infirmity due to chronic schizophrenia and cerebrovascular disease,” and probably incapable of managing her person;

  • That Mrs. B was “capable of managing her affairs ... [with] no indication of chronic paranoid schizophrenia,” that the caregivers’ discontinuance of antipsychotic medication with no adverse effects to Mrs. B cast “serious doubt on the diagnosis of schizophrenia,” and that Mrs. B showed improvement in cognitive function as an outcome of the discontinuance of this medication;

  • No evidence of chronic schizophrenia, and that, despite evidence of organic brain damage from a stroke, Mrs. B was capable of giving a power of attorney;

  • That Mrs. B “knows what she wants and is competent in communicating her wishes and needs to others and knows what she is doing,” and was quite competent to grant her caregivers power of attorney;

  • That Mrs. B was as rational and competent as the average person, despite speech difficulties, and was “in no way obtunded either by medication or a pathological condition.”[50]

The court concluded that Mrs. Batiuk was mentally capable.

Competing medical assessments, in this context, work to pull back the curtain of objective biological fact, revealing the human work of construction that is always—although usually hidden—carried out behind it. In the more usual course of events, however, that curtain stays closed. Once the medical assessment comes into being, whether on the basis of mere diagnosis (as set out in old-fashioned, status-based legislation, such as the Patients Property Act) or through a modern “best practice” functional assessment[51] carried out by an interdisciplinary health team, that assessment assumes the mystifying authority of the bio-fact from the perspective, and for the purposes, of the law. (Although the machinations behind the curtain will always remain visible to the medical observer.) This medical control has been criticized by authors, who describe it as an abdication of due process for older adults,[52] but in fact, it is the inevitable outcome of the determinative role assigned to cognitive capacity, in this context, as a “scientific” matter on which physicians are the designated experts.

If current and projected courses of behaviour are in question—financial decision making now and in the future, as opposed to a discrete, past transaction—the consequence of a finding of mental incapacity will be the appointment of a long-term substitute decision maker, or guardian. (Long-term need not mean forever, but connotes a period beyond an identified, discrete, and pending decision.)[53] Unlike pending, discrete health care decisions, and past, retrospectively assessed property-related decisions, the precise nature of all decisions that a guardian might possibly make on behalf of another person is unknowable at the time that this person’s capacity is assessed. The abstraction of capacity in this context sets it apart from the (relatively embodied) inquiries in the other contexts considered here. Despite the efforts of modern guardianship legislation to more closely resemble the health care decision-making paradigm, limiting capacity evaluation and guardianship powers to more specific kinds of choices,[54] anticipating or allowing explicitly for temporal limits,[55] and providing for shared or co-decision making,[56] the very idea of guardianship is necessarily predicated on the recognized need, in some circumstances, for stable, ongoing, formalized, and therefore publicly reviewable, relationships of responsibility. In these circumstances, a requirement of a decision-specific capacity assessment preceding each decision would be ludicrously cumbersome and unworkable. Modern guardianship legislation therefore, as it must in order to effect its essential purpose, retains at its core the evaluation of a person’s current and projected ability to make certain of decisions. These classes of decision are given a finer breakdown in modern legislation but cannot be limited to discrete decisions in a specific and known context.

As embodied, moreover, those decisions at the centre of the guardianship inquiry are qualitatively different from the discrete and punctate decisions at issue in the property or health care contexts[57]—whether to make a will or whether to have an operation—referring, rather, to one’s ongoing performance of life’s essential tasks.[58] The distinction is important. The decision-making model plays a crucial role within the capacity-autonomy equation or paradigm: if the individual is capable of making the kind of decision in question, then the content of that decision is (again, formally) not relevant. The locus of the capacity analysis in the decision process avoids the substantive evaluation of choices and behaviours. At the same time, the construct of mental capacity, and therefore the mechanism of the decision at its conceptual core, is most ideologically charged in this context. This is due to the paradigmatically inherent, depersonalizing effects of a finding of projected incapacity (where persons are defined as beings capable of rational thought, as opposed to the class of being referred to by Frankfurt as “wantons”—a non-person category that includes, for Frankfurt as for Feinberg, “the senile”).[59]

IV. After Capacity: Theorizing Vulnerability

The capacity construct works well enough in the property-decision and health treatment context, as a mechanism for determining the “right” outcomes in situations of conflict or doubt. The capacity construct in the context of guardianship and guardianship-type interventions is, by contrast, much more problematic—even, I suggest, dysfunctional. It is a source of difficulty and confusion for the professionals charged with finding capacity, together with a consequential depersonalization of those found to be incapable.

These difficulties have driven both the reforms in modern guardianship legislation and the proliferation of capacity assessment tools over the last fifteen to twenty years. Legislation in modern guardianship jurisdictions may explicitly require, and provide guidelines for, functional capacity assessment.[60] Even in jurisdictions, such as British Columbia, where the traditional legislative approach persists (defining capacity in terms of “disability” or “infirmity”), the functional approach to assessment may be adopted as best practice.[61] Despite these developments, however, the mental capacity construct remains intact: whether capacity is defined as a cognitive-status diagnosis or as decisional ability, the formal focus of the functional assessment inquiry remains fixed on the individual’s internal mental and rational ability, now evaluated in relation to the specific function, or functions, in question. The crucial question is posed in the Ontario guidelines as, “Does this person’s level of decisional ability match the demands of the specific situation with which they are faced?”[62] Context and performance, in this account, are relevant as evidence of that essential cognitive-decisional ability. The cognitive ability to make a decision—and the choice of the person who has the cognitive-decisional ability to “decide”,” but who is, on an embodied level, being exploited or living in squalor, for example—cannot be interfered with or displaced. This non-interference respects the capable person’s right to make objectively “bad” or foolish decisions. In this way, functional capacity, and the functional capacity assessment, can be seen as a finer-grained iteration of the autonomy or mental capacity threshold, presented in the objective-authoritative “hard”-science language of standardized measures and scores (with the rapidly expanding repertoire of standardized functional and cognitive assessment tools supplementing the once-sufficient diagnosis and prognosis), and supported by the “soft” evidence provided by interviews and collateral information.

From another perspective, however, the medical shift towards functional assessment, by explicitly seeing and asking about performance (i.e., behaviour) and context, albeit in the guise of a more complete and “scientific” measure of capacity, may be seen as implicitly acknowledging the essential function of guardianship as a social response to vulnerability. The question “Does this person’s level of decisional ability match the demands of the specific situation with which they are faced?” can be understood as asking, in effect, How is this person coping on a day-to-day level without assistance? If functional capacity and the functional capacity assessment effect a regularization of the capacity inquiry as a de facto (but insistently not de jure) assessment of vulnerability, how much does the continuing language of capacity really matter? Or can it be considered, as in the property context, as a useful, no-cost, theoretical mechanism for reconciling social policy objectives with core, but essentially abstract, values of liberal individualism?

To the extent that capacity and vulnerability exist in theoretical opposition to one another—not as mere words, but as each is informed by the discourse that has developed around and between them—the continuing language of capacity matters a great deal. Vulnerability is necessarily positioned within the capacity-autonomy paradigm as a kind of “incapacity lite”[63] that would justify interference without the (apparent) scientific-objective legitimacy of the capacity finding. The traditional association of vulnerability with weakness, “victimhood, deprivation, dependency, or pathology”[64] may be understood as, at least in part, a function of this relationship to the dominant paradigm and the capacity-autonomy threshold: you can make your own decisions, therefore the decisions you make are your own; where they are sufficiently bad to attract outside intervention, you have willfully taken yourself outside the pale of reasonable self-governance. You have become a failed state, the faulty subject non pareil. Rejection of this characterization has led to a rejection of vulnerability itself, as both patronizing and harmful, derived from stereotypes and the kind of substantive value judgments that negate individual autonomy. This counter-narrative, also, is a function of the capacity-autonomy paradigm; the persistence of the capacity construct in the guardianship context has frustrated a coherent, theoretical development of vulnerability. Instead, vulnerability exists in the shadow of, and is defined by, its relationship to capacity: the other where capacity is the norm; a protectionist-based, as opposed to autonomy-based, ground for intervention; subjective where capacity is objective; sentimental and sloppy where capacity is clear-eyed and scientific.[65]

Despite the theoretical and ideological hegemony of capacity, it is embodied vulnerability, as opposed to abstract capacity, that most often serves as the de facto locus of evaluation and response for the courts, lawyers, and the health professionals who play the dominant role in the capacity-finding process.[66] Within the conceptual framework of the capacity-autonomy equation, however, that evaluation is, and must be, covert—occurring outside of the official margins, unexamined, undefined, and therefore undefended. The evaluation of individual vulnerability in the capacity assessment process, where it is acknowledged to have taken place, will be identified as a deviant and faulty, paternalistic and protectionist practice. The charged, covert, and unspeakable centrality of vulnerability in this context has given rise to the apparent conflict or debate between protection and autonomy that has dominated and distorted the discourse around guardianship for decades. The language of “debate” is, of course, a rhetorical mechanism: in this discourse, “protection” is the rhetorical straw man in opposition to which “autonomy” is, heroically, defined.

A. Situating Vulnerability: Relational Autonomy

The idea of autonomy as an internalized mental quality associated with self-possession and free will that sits at the core of the capacity-autonomy paradigm and ideology, is embodied, in mainstream liberal culture, in the crude figure of the autonomous man.[67] That figure has long played a dominant role in legal doctrine and legal discourse generally, and in the law pertaining to mental capacity in particular. (He is also now enshrined as the dominant principle in bioethics, overshadowing the traditional medical value of beneficence.) Elsewhere, however, the theoretical coherence and credibility of the autonomous man, and of the world view he embodies, has been seriously eroded. Jennifer Nedelsky and other, primarily feminist, writers have reimagined autonomy as fundamentally relational, contextual, and developed (as opposed to innate, to be held onto, lost, or taken), exercised through (and not in resistance to) relationships with other human beings, both as a process of autonomous thought or decision making, and as a set of substantive characteristics.[68] For Nedelsky, autonomy is practiced as a way of being in the world rather than a series of self-willed choices. We act as we are constituted to act and as our “meaning”, of which our social and relationship context is at least partially constitutive, inclines us to act.[69]

Relationships per se are not sufficient for the development of autonomy in the relational account. The right kind of relationship context, of which the loving mother-child relationship may be the paradigm, but the hostile mother-child relationship is surely the antithesis, is required. In this way, and for this reason, theories of relational autonomy[70] necessarily involve questions of values and, therefore, value judgment. Some of us will be lucky enough to have developed within a relationship context conducive to the development of relational autonomy. Those of us who were not so lucky must subsequently find or create that context. Our material and personal situation will be crucial, probably determinative, to our success in this endeavour: Do we have access to sufficient money, time, and environmental supports? Are we fearful, exploited, or abused? Do we have personal characteristics that make it more difficult to navigate the social world? Many, accordingly, will be left out of the autonomy ambit, at least until such time as they are able to develop, or regain, “true” autonomy.

This apparent eliteness of relational autonomy, as a highly desirable quality possessed by the few, is less problematic if relational autonomy is understood to exist in relation to vulnerability rather than in opposition to capacity and, therefore, non-autonomy and non-personhood. Vulnerability—like relational autonomy, as it is described by Nedelsky and others—arises through the interaction of personal characteristics (also shaped by context) and through those contextually derived factors that together make up the individual’s total life situation, including education, relationships, experiences, and material circumstances and resulting opportunities, as well as connection to other people and other “worlds” through paid work or otherwise.[71] In this way, vulnerability is not so much the absence of (relational) autonomy but its constant shadow, which may be expected to wax and wane over an individual’s life course.[72] And like relational autonomy, vulnerability is practiced as a way of being in the world that is neither chosen nor willed; as persons, whether vulnerable or not, we act as our meaning inclines us to act, and we take that meaning, in part, from our relationship context.[73]

B. Vulnerability and Public Response: The Problem of Definition

The mental capacity construct provides, from the legal perspective, a hard, objective standard. No similar construction of vulnerability as an “out-there” bio-fact is possible. Vulnerability is necessarily relational, and legislation in jurisdictions recognizing, and providing a response to, vulnerability has struggled with the question of definition. Where the vulnerable are defined in terms of status characteristics—the elderly, the physically and mentally disabled—obvious problems of inappropriate overinclusiveness (together with less obvious, and more controversial, problems of underinclusiveness) arise,[74] “reawaken[ing]”, indeed, the “ghost of a ‘status approach’” that was intended to have been banished by functional capacity assessment.[75] This is vulnerability as “incapacity-lite”. The development of a common law “vulnerability” in the English courts suggests a more distinctive legal construct and one that is more akin to the equitable doctrines of undue influence and unconscionability. In Re SA, Justice Munby described the developing[76] standard as follows:

In the context of the inherent jurisdiction I would treat as a vulnerable adult someone who, whether or not mentally incapacitated, and whether or not suffering from any mental illness or mental disorder, is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation, or who is deaf, blind or dumb, or who is substantially handicapped by illness, injury or congenital deformity. This, I emphasise, is not and is not intended to be a definition. It is descriptive, not definitive; indicative rather than prescriptive.[77]

Discussing Re SA and the development of the court’s inherent jurisdictions with respect to the vulnerable, Dunn et al. note—with caution—the implications of the court’s analysis in that case: that “the court’s inherent jurisdiction is not confined to ‘vulnerable adults’ defined through inherent vulnerability”:

[T]he incorporation of situational vulnerability into the construction of the ‘vulnerable adult’ draws upon an understanding of vulnerability as universal. Vulnerability becomes a concept tied to the personal, social, economic and cultural circumstances within which individuals find themselves at different points of their lives, and an endemic feature of humanity. Accordingly, justifying substitute decision-making on the basis of situational vulnerability could lead to interventions that are potentially infinite in scope and application. Might it not be possible, for example, that a man, involved in an abusive relationship and about to embark on cohabitation with his violent partner, could be defined as being situationally vulnerable in order to justify court interventions that place restrictions on his living arrangements, as a means of ensuring that he is able to make personal autonomous decisions in the future, without the imposition of constraint or the threat of violence? Equally, might it not be possible that a family with considerable financial debt could be defined as situationally vulnerable in order to justify court interventions which ensure that they restructure their debts in a manner that could ultimately relieve this putative vulnerability, thus ensuring that they can continue to make personal economic decisions that are free from the undue influence of bank charges or the threat of bankruptcy?[78]

This is the fear of the slippery slope of open-ended intervention. But is the complexity of social reality and the nature of the self in the context of human relationships really beyond the reach of coherent legal analysis and response? Consider Lord Scarman’s description of the doctrine of undue influence, also concerned with the self in a social and relationship context, in the case of National Westminster Bank PLC v. Morgan:

There is no precisely defined law setting limits to the equitable jurisdiction of a court to relieve against undue influence. ... It is the unimpeachability at law of a disadvantageous transaction which is the starting-point from which the court advances to consider whether the transaction is the product merely of one's own folly or of the undue influence exercised by another. ... [T]his is a question which depends upon the particular facts of the case.[79]

There is no substitute in this branch of the law for a “meticulous examination of the facts.[80]

I suggest that it is possible to imagine a similarly fine-brushed, individualized, and context-sensitive approach outside of the property context to which undue influence has traditionally been confined. The traditional doctrines of equity—undue influence and unconscionability—provide a useful conceptual framework for seeing, and responding to, vulnerability in embodied context.[81]

I am arguing that the key question is not whether society should respond to vulnerability. The guardianship response to mental incapacity—including public guardianship-type interventions for the cognitively impaired under mental health legislation—is a response to vulnerability, couched in, and confused by, the language of capacity. I am not arguing for a necessary extension of legal or social intervention to a new class of persons, “the vulnerable”, but for an honest reappraisal of the basis on which—and therefore, the ways in which—interventions currently happen. The vulnerability characterization, unhinged from the capacity-autonomy paradigm, allows us to see, understand, and therefore question the situational limitation of this public response to vulnerability as a policy decision. Recognizing vulnerability does not, by that reason alone, mean responding to all vulnerability, in all circumstances (the slippery slope feared by Dunn et al.). Responding to vulnerability depends on the availability of an effective response, together with a policy decision regarding whether vulnerability unchecked, in certain classes of cases, is permissible. Guardianship legislation, from this perspective, provides a response to the vulnerability of older adults with cognitive-mental health deficits,[82] allowing for a particular and limited response—substitute decision making—that efficiently responds to the social needs involved (as discussed above), if not, with any exactitude, to the needs of the vulnerable subject him- or herself. The guardianship response is not, formally, limited to older adults but is most often, by a considerable margin, used in response to the vulnerability of older adults.

Conclusion

As Lord Rodger of Earlsferry reminded us in D v. East Berkshire Community Health NHS Trust, “[T]he world is full of harm for which the law furnishes no remedy.”[83] Objectively speaking, there are many people who struggle; who cannot pay their bills or are exploited; who, for a variety of reasons, do not care for themselves or their surroundings in accordance with basic norms of hygiene. And many of these people could, perhaps, be characterized as vulnerable. Is intervention justified on behalf of them all? We know that it does not happen—that no explanatory mechanism has emerged to enable it to happen. Why not? What is special about the group of people currently characterized as incapable that, as matter of (non-explicit) social policy, motivates intervention (which is then squared with the autonomy ideal through the theoretical mechanism of incapacity)?

The most obvious characteristic of the incapable—as opposed to the mentally ill, as a constructed class—is that they tend to be old.[84] Unlike the young mentally ill, there is an implicit social understanding that the presence of old, impoverished, and visibly delusional people begging on the street and sleeping in doorways is not tolerable in the way that the presence of visibly mentally ill “street people” has become an everyday feature of urban life. The public vulnerability of the old is intolerable in a way that the public vulnerability of the young, excepting children, is not. There may be compelling reasons for this policy choice and for the public response on which it is based, given the increased frailty of older adults; what is important is that the choice, and the reasons for it, be acknowledged.[85] The mechanism of guardianship allows highly motivated family members and friends to respond to, and deal with, that vulnerability—whether that response is desired by the subject or not. (If assistance is desired, formal guardianship proceedings may not be necessary or pursued, except in cases of suspected exploitation and contested guardianship.)[86] Where no person is available to become a guardian, the available public response will be more limited: financial (and possibly personal) management by the Public Guardian and Trustee, or admittance to a nursing home.

This analysis is not intended to suggest that cognitive impairment (i.e., the dementias) is not real; cognitive impairment is a significant contributing factor to the kind of vulnerability that triggers public response. But mental illness in the non-elderly is equally real, as is addiction and the effects that an abusive relationship context have on self and relational autonomy.[87] Neither dementia nor mental illness—unlike cancer, for example—can be proven during life through a blood test or a cell on a slide.[88] Dementia, like mental illness, is established through observation of a person’s speech, actions, and behaviours, and the medical evaluation of those external signs of the brain within. Despite this etiology, however, the dementia diagnosis is presented in popular culture as scientifically “hard” in a way that the mental illness diagnosis is not. The human subject of the dementia diagnosis, therefore, is perceived as morally blameless in a way that those diagnosed with mental illness are not, also giving rise to, and justifying, a particular social response (explained, at least in part, through the construct of decisional capacity).

Theorizing and then identifying vulnerability allows us to focus explicitly, and therefore carefully, on the identification of situations or contexts in which vulnerability justifies a social response. That is a question of policy. A second question requires serious and careful thought about what kind of response will actually be useful and workable to redress the particular and embodied problem identified.[89] The law cannot and should not respond where the available response is inappropriate and ineffective; this involves very different considerations, which are precluded by the mental capacity construct. The question of resistance, and the problem of oppressive socialization and other compelling contextual factors, will be crucial here—not because of their relationship to an abstract autonomy but because of their practical implications for response in the particular context of embodied lives. Intervention is easy if I gratefully accept the help offered by a benevolent relative or emissary of the state; it is hard if I refuse (e.g., I don’t want to leave or to change my context, be it a squalid hovel or an abusive relationship). If I understand autonomy as innate, “my decision” must be enforced unless I have lost capacity (and having lost my autonomy, my decision is not my own anyway, and the problem is resolved). If I understand autonomy as relational and developed through context, the idea of my autonomous decision in these circumstances loses authority. I may be unable to “choose” another way of living and being until my context (and therefore my self) is changed.[90] This is a hard truth, and it raises moral, conceptual, and practical challenges. The capacity construct has worked to the extent that it has masked that truth, enabling intervention without consent in a limited class of situations, while maintaining the crucial social fiction of liberal autonomy.

Recognizing and responding to vulnerability also requires us to think carefully, and without the obfuscation provided by the apparent scientific objectivity of the capacity threshold, about judgment. Perhaps we can understand the significance of the capacity threshold in particular, and the institutions of “social services” generally, in terms of a definitively modern flight from judgment. In leading us back to judgment, theorizing vulnerability (after capacity and the theoretical hegemony of the capacity threshold) leads us back into the embodied world. Judgment (as opposed to mere choosing) is neither arbitrary, nor subjective, nor idiosyncratic, but is deeply enmeshed with the world,[91] anticipating a community of judgment makers who must be convinced of the rightness of my chosen course of action. Theorizing vulnerability opens that discussion, hitherto precluded by the closed—because it is “objectively” definitive—mental capacity threshold.