Camillia Kong's book, Mental Capacity in Relationship, is an important contribution to debates over mental capacity. It combines philosophical, psychological and legal materials in an effective and stimulating discussion of the topic. It is particularly timely given the debates over the nature of the capacity in light of the United Nations Convention on the Rights of Persons with Disabilities. It is an excellent, sophisticated, analysis of the issues.
The title of the book gives away a key aspect of her argument: that we need a relational understanding of mental capacity. She argues that capacity is typically understood in terms of the individual: does P understand the relevant information? Are they able to weight up the information to reach a decision? And so forth. Indeed that seems to be precisely the approach advocated by the Mental Capacity Act 2005's definition of capacity in section 2. Camillia Kong argues instead that a person's capacity should be understood as ‘the ethical-dialogical stance of her surrounding relationships, of the capacity assessor or other intervening professionals’.Footnote 1
Much of the current writing and legal analysis of capacity imagines that people are mini-philosophers. Sitting at our desks, we carefully undertake detailed research, gathering evidence, listing the pros and cons and carefully weighing them up, before reaching our concluded decision. But even academics don't operate like that. Quite rightly, Camillia Kong firmly rejects the privileging of the rational, the cognitive and the ‘making of a choice’ which dominates much of the writing on capacity. As she argues, it is in and through our relationships and social environment that we come develop understandings of the world. Our understanding of who we are, what options are open to us, and what we can do are shaped by our relationships. As Kong puts it:
Connection is often necessary for autonomy to flourish – our bodily connection with our physical environment, with spatial and temporal dimensions of experience, and our emotional, intellectual bonds with others …Footnote 2
This means that to promote autonomy it is necessary to promote relationships and ‘self-nurturing narratives’ and ways of understanding.
This is particularly important, as Kong highlights, when dealing with people with intellectual disabilities. We need to appreciate their ‘perceptive and conceptual framework’Footnote 3 rather than emphasise their disabilities. This will enable us to appreciate the individual and avoid objectification. Only then does it become possible to extend their agency.
Kong is very aware that the relational context a person is in can undermine as well us uphold their identity and agency. Using a telling example, she argues that if someone is consistently told they are useless and worthless, that understanding can become part of who they are and mark their agency. Just as relationships can maximise and enhance identity and agency, they can also undermine them. For Kong's analysis it is important, therefore, to identify the kind of relational contexts which will enhance decision-making practices. She lists six features.Footnote 4 First the relationships help individuals ‘realise their potential decisional abilities’. Second, they ‘establish a shared perceptual world through understanding and accommodate how impairment may impact one's expression of embodied coping’. Third, that the relationships are sensitive to the vulnerabilities ‘unique to one's impairment’. Fourth, that the relationships recognise the ‘separateness of persons’ and the uniqueness of their perspectives. Fifth, that relationships guard against objectification by ‘maintaining an engaged stance of dialogical openness, humility, and conscious awareness of their own interpretive limitations’. Finally that ‘[t]hey are open to the ways in which individuals may express reciprocity even as asymmetrical moral responsibility may characterise the basic structure of the relationships’.Footnote 5
Kong very powerfully argues for seeing capacity as on ‘a spectrum’.Footnote 6 She is therefore critical of the Mental Capacity Act 2005's structure, which separates out people into having capacity or not having capacity, creating a ‘stark cliff-edge’. She claims that capacity assessments, just as much as best interests assessments, become questions of value. Indeed, she goes further and questions the distinction between capacity and best interests assessments. This is particularly because she sees the primary role of legal intervention as being to promote enabling conditions that develop autonomy skills. Wherever one is on the spectrum of capacity, more can be done to enable autonomy. She is clear, therefore, that interventions should be possible even for those who are deemed to have capacity. I find Kong's analysis on this issue convincing. I am surprised she does not make more of the inherent jurisdiction of the court to deal with vulnerable adults, which seems precisely able to provide flexibility to adopt her arguments.Footnote 7
As will apparent from some of the quotations in this review, the language in which the book is written can be a challenge for readers who are not natural philosophers. There are some sections which are at a highly theoretical level. It was, therefore, refreshing that the book concluded with a discussion of the author's niece, Ava, who has Rett Syndrome. The short discussion about her ‘village’ of carers and therapists, and the discussion of unlocking the mystery of her mind, gave the book a powerful conclusion. Ava's mother is quoted as saying that she wants ‘people to see Ava as a vibrant happy girl and not first see her disabilities’. And, perhaps, at its heart that is what this book is all about. Finding ways in which all of us can acknowledge our impaired capacities and decision-making, and working together to understand ourselves and each other. Because it is, as Kong argues, in and through our relationships that we can discover autonomy.
