Student Essay John McPhee (Law) Prize Winner
1University Of Otago, Post-graduate student; Bioethics Centre, University of Otago, New Zealand
Decision-making capacity is a vital concept in law, ethics, and clinical practice. Two legal cases where capacity literally had life and death significance are NHS Trust v Ms T  EWHC 1279 and Kings College Hospital v C  EWCOP 80. These cases share another feature: unusual beliefs.
This paper will critically assess the concept of capacity, particularly in relation to the unusual beliefs in these cases.
Firstly, the interface between capacity and unusual beliefs will be examined. This will show that the ‘using and weighing of information’ is the pivotal element in assessment.
Next, this paper will explore the relationship between capacity assessment and a decision’s ‘rationality’.
Then, in light of these findings, the paper will appraise the judgments in NHS v T and Kings v C, and consider these judgments’ implications.
More broadly, this paper asks: Does capacity assessment examine only the decision-making process (as the law states), or is it also influenced by a decision’s rationality? If influenced by rationality, capacity assessment has the potential to become “a search and disable policy aimed at those who are differently orientated in the human life-world.” (Gillett, 2012, p. 233). In contentious cases like these, this potential deserves attention.
GILLETT, G. 2012. How do I learn to be me again? Autonomy, life skills, and identity. In: RADOILSKA, L. (ed.) Autonomy and Mental Disorder. New York: Oxford University Press.
Brent is a medical graduate (Otago 2008) trained in geriatric medicine (Royal Australasian College of Physicians), currently studying towards a Master of Bioethics and Health Law degree.