Decision-making, legal capacity and neuroscience: implications for mental health laws

Bernadette McSherry

Research output: Contribution to journalArticleResearchpeer-review


Neuroscientific endeavours to uncover the causes of severe mental impairments may be viewed as supporting arguments for capacity-based mental health laws that enable compulsory detention and treatment. This article explores the tensions between clinical,human rights and legal concepts of “capacity”. It is argued that capacity-based mental health laws, rather than providing a progressive approach to law reform, may simply reinforce presumptions that those with mental impairments completely lack decision-making capacity and thereby should not be afforded legal capacity. A better approach may be to shift the current focus on notions of capacity to socio-economic obligations under the Convention on the Rights of Persons with Disabilities.
Original languageEnglish
Pages (from-to)125-138
Number of pages14
Issue number2
Publication statusPublished - 2015
Externally publishedYes


  • legal capacity
  • mental capacity
  • decision-making
  • mental health laws
  • neuroscience

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