Is the Mental Capacity Act 2005 too paternalistic?

The concept of mental capacity sits at the junction of two of the most powerful discourses in our society today: autonomy, and paternalism.  The Mental Capacity Act 2005 (MCA) is concerned with autonomy in two interlinked senses:

• Autonomy meant as the right to determine one's own course, free from external interference (closely linked to the concept of negative liberty and Liberalism in political philosophy);
• Autonomy meant as the capacity for self-governance of one's actions (often called 'personal autonomy' in Philosophy).

At base, the MCA serves a gatekeeping function between actions (or inaction) predicated upon discourses of autonomy or paternalism.  (Very) roughly put: if you have the capacity for autonomous (self-governing) decision making, you should enjoy the right to autonomous (free from interference) decision making.  If you don't have the capacity for autonomous decision making, then paternalistic interferences with your affairs are permitted.  In theory, under the MCA a person should not be denied the right to make decisions they are capable of making; but equally they should not suffer the consequences of decisions they are incapable of making.

There's no place like home - thoughts on Rose Villa

What does it mean to call a place a home? Homes, like people, come in all shapes and sizes, and the concept of ‘home’ is almost certainly what Wittgenstein called a ‘family resemblance’ term. That is, the many instantiations of ‘home’ share a collection of overlapping similarities (like families), but there is no common ‘essence’ to pick out and say “this is what we mean by home”. Home is a relational concept: for a space to be a home it must stand in some kind of relation to a person (or people). But a building is not a home merely by virtue of a person being in it; there are behaviours we associate with homes (although they might be done in other places). Evidently there is an important emotional and psychological content to whether we experience a space as a ‘home’, rather than a place to eat or rest. I propose that there are (at least) three legally salient characteristics of home: autonomy, privacy and permanence. Without expounding a detailed ‘philosophy of home’, I want to explore two issues that come up a great deal in care: whether institutional care settings can erode a sense of ‘home’ through erosion of autonomy and privacy, and the effects and significance of the enforced closure – or move from – an institutional care setting. Both these issues are well captured in the recent fate of Rose Villa[1], a care home run by Castlebeck and heavily criticised in a recent CQC report, and which - it was announced yesterday – will now be closed.