The new playing field

I have been thinking about relational autonomy quite a bit lately. It comes up more and more in writings on legal capacity. In England and Wales there are, with a few honourable exceptions, two distinct literatures around legal capacity: a literature about the Mental Capacity Act 2005 (MCA) - how progressive and empowering and autonomy promoting it is - and a more international literature connected with the UN Convention on the Rights of Persons with Disabilities (CRPD) – and in particular Article 12 – about how dreadful laws like the MCA are, how regressive, disempowering, autonomy-denying. These literatures seem to have evolved quite separately, almost always cheerfully ignorant of each other’s concerns, and interestingly – both increasingly pray in aid ideas connected with what philosophers call ‘relational autonomy’. 

Relational autonomy is an idea which emerged in feminist philosophy over the last couple of decades. In debates about the MCA and the CRPD, autonomy is often used as a kind of analogue to the legal concept of ‘capacity’ – the ability to make decisions for oneself. Scholars of legal capacity who make reference to relational autonomy, therefore, are simply arguing that our ability to make (legally recognisable) decisions is somehow connected to our relationships with others. Unfortunately, most scholars of legal capacity simply stop there – as if the consequences of this are simply obvious. 

For scholars connected with the CRPD, relational autonomy is often taken to provide a solid basis for the ‘support paradigm’ – the idea that everybody can enjoy full legal capacity provided they have access to the (relational) support they need to make a decision (e.g. Francis and Silvers (2009), see also the writings of Gerard Quinn and check out the work of Amita Dhanda). It is almost amusing, if it didn’t signify such a lamentable ignorance of the scholarship on the CRPD and its drafting, to observe some writers more familiar wit the MCA writing off the CRPD as built upon an individualistic model of autonomy, and suggesting they look further into ideas of relational autonomy! (ahem, Fyson and Cromby, 2012). Scholars who are writing about the MCA increasingly refer to relational autonomy either to explain how they think good best interests decisions (anathema to the support paradigm of the CRPD) are made (e.g. Dunn, Clare and Holland (2009)), or to argue that (some) relationships actively deplete decision making abilities linked to autonomy and capacity (e.g. Herring (2012)). Some scholars, it must be said, simply gesture at ‘relational autonomy’ without making clear what they think this concept will add to our understandings of how relationships are linked to autonomy/capacity. 

What seems to be happening here is that people are taking ‘relational autonomy’ (whatever that is) to be some kind of decisive victory in debates which are, fundamentally, about whether it is ever acceptable to make a decision on another person’s behalf on grounds that there is something wrong with the way they made that decision. In truth, it seems to me, that relational autonomy is nobody’s winning goal – it simply opens up a new field of play for debates about legal capacity (and analogous debates about autonomy and personhood) to rage on. The trouble is, us legal scholars aren’t very clear on the rules of this new game – bring in the philosophers! (I hope you’re reading this, Wayne, Fabian, Tom and Tim T – because I’m about to make a tremendous hash of this and I think we really need some experts). 

John Christman’s entry in the Stanford Encyclopedia helpfully draws out several distinct strands of thinking around relational autonomy: 

...relational conceptions of autonomy stress the ineliminable role that relatedness plays in both persons' self-conceptions, relative to which autonomy must be defined)... on the one hand, relational accounts can be taken as resting on a non-individualist conception of the person and then claim that insofar as autonomy is self-government and the self is constituted by relations with others, then autonomy is relational; or these accounts may be understood as claiming that whatever selves turn out to be, autonomy fundamentally involves social relations rather than individual traits (Oshana, 2006). Some such views also waiver between claiming that social and personal relations play a crucial causal role in the development and enjoyment of autonomy and claiming that such relations constitute autonomy (for discussion see MackEnzie and Stoljar, 2000b, 21–26). 

As I read it, if personhood is constituted by our relationships with others, then for good or for bad, if a third party has strong influence on a person’s decision making then this is not evidence that they are not capable of making autonomous decisions, this is because our autonomy (and our identity and selfhood) arises out of our relationships with others. So even if a person makes crappy choices under the malign influence of another person, then they can still be autonomous choices, because there’s nothing about autonomy per se which says choices have to be choices which other people like or that relationships have to be nice. 

But if autonomy is not constituted by our relationships with others, but is affected by them, then we might say that relationships with third parties could either promote or deplete autonomy. So, on this view, we might falsely ascribe autonomy to a person because it appears to be them who is making a decision, when in fact they stand in some kind of relationship to others which means that their decisions are not really autonomous. To borrow again from Christman: 

... proceduralist accounts of autonomy would wrongly attribute autonomy to those whose restricted socialization and oppressive life conditions pressure them into internalizing oppressive values and norms, for example women who have internalized the belief in the social authority of husbands, or that only by having and raising children are women's lives truly complete, and the like. 

This, I think, is where the people who talk about relational autonomy in the context of the MCA are coming from. This is the view taken by Herring (2012), and this, clearly, is where legal concepts like ‘undue influence’ are coming from. The converse of this view is that good socialisation, non-oppressive life conditions – life conditions which promote self-respect, self-esteem and so on – can enhance autonomy and capacity. But there is still a sense that the decision has to be the person’s own decision, only a recognition that being able to make your own decision depends on how you have been socialised. 

Now, I have to say, I don’t think either the MCA or the CRPD literature is especially clear about what brand of relational autonomy it is buying into (except for Herring, who does seem to be quite explicit that relationships can endanger autonomy/capacity). Some of the CRPD literature seems to adopt quite an extreme version of the relationships-constitute-personhood account. It seems to be saying that so long as we can establish what decision a person is communicating, that is sufficient to recognise that as an autonomous decision – no matter how far that decision was influenced by third parties. In order to accommodate the idea that even decisions made with a very high level of support are autonomous/capacitous, the support paradigm may need to accommodate the idea that a decision is autonomous/capacitous even where it is heavily influenced by a supporter. 

But this cannot quite be right, as Article 12 CRPD also says that supports for capacity must be free of undue influence. But undue influence is left undefined – either in the CRPD itself or in any of the supporting literature (indeed, it is virtually ignored in the writings on Article 12). So, with my legal hat on, I can imagine that in situations where a person is making decisions which are heavily influenced by somebody identifying as a supporter, and other people don’t like the outcomes of those decisions, the legal route in would be not so much to deny that the person lacked capacity, but to deny that the support they were receiving was free of undue influence. I can imagine a load of satellite litigation about the boundaries between support and undue influence, which will – inevitably – ultimately be about whether we like the kinds of decisions a person makes under the influence of that person. I’m not entirely clear, though, what that means for the status of the person’s decision if they clearly communicated it at the time? 

The recently published case A Local Authority v AK & Ors [2012] EWHC B29 (COP) is really all about this issue. AK is a chap who had been married and divorced, then lived with a woman and separated from her, before having two traumatic brain injuries which significantly impaired his abilities to independently understand and retain information. The brain injuries also led to a reasonably common trait for people with serious brain damage of ‘confabulation’ (ie. spontaneously giving false narrative information, which the person apparently believes, often to make sense of present circumstances). 

As a young man, AK had dated a woman called BK for a year, before embarking on his other marriage and relationship and having children. After his first brain injury, he began dating BK again, but broke things off with her – describing himself as too ‘unmanageable’ to make things work. Later that year he suffered a second head injury, described by a doctor as resulting in ‘catastrophic brain damage’, and after staying in various hospitals he was moved to a neurodisability unit. BK began to visit AK in hospital the day after he was admitted with this second injury, and visited him daily. She and AK resumed their relationship and BK took AK out of the neurodisability unit under false pretexts twice (to the unit, and to AK’s family that is – not to AK himself) – once to give the requisite notification of intention to marry, and once to marry him at the registry office. The judgment addressed whether the marriage was valid – whether or not AK ‘had capacity to marry’ BK. 

As an aside, it appears that BK believed that once married she would in some way supplant the authority over AK which she perceived his family and social services to have, and be able to take him home to live with her. This is a common misconception – but marriage doesn’t confer any automatic authority to make decisions on behalf of a person who lacks capacity, to demand that they live with you, or to visit them in hospital. The power of the MCA to dissolve a person’s right to decide where they live and who visits them is no respecter of marriage – the Court of Protection could have left the marriage intact and still prohibited BK from taking AK home, or prevented BK from visiting him. It would just look pretty bad in doing that, if it also held that AK had made a capacitous choice to marry BK and wanted to live with her. Hospitals and care homes could have a defence in best interests if they prevented a spouse from visiting (although it would be a pretty dodgy defence if they didn’t accompany this with an urgent application to the Court of Protection). So unless one is concerned about the property and affairs side of things, which really are affected by marriage, this case seems largely to be about a symbolic matter – whether AK’s union with BK was ‘real’ enough to warrant the serious respect of the court. But that does not mean it was not a profoundly important matter. 

The test of capacity to marry has historically been taken from Sheffield City Council v E & Anor [2004] EWHC 2808 (Fam), where Munby LJ deliberately tried to set it low ‘lest it operate as an unfair, unnecessary and indeed discriminatory bar against the mentally disabled’. The test in Sheffield is simply that a person understands – in general – the nature of the marriage contract: 

To have the capacity to marry one must be mentally capable of understanding the duties and responsibilities that normally attach to marriage. What then are the duties and responsibilities that in 2004 should be treated as normally attaching to marriage? In my judgment the matter can be summarised as follows: Marriage, whether civil or religious, is a contract, formally entered into. It confers on the parties the status of husband and wife, the essence of the contract being an agreement between a man and a woman to live together, and to love one another as husband and wife, to the exclusion of all others. It creates a relationship of mutual and reciprocal obligations, typically involving the sharing of a common home and a common domestic life and the right to enjoy each other's society, comfort and assistance. [132] 

This ruling has been subject to various commentaries, most notably by Herring, Barker and Fox in their rewriting of the judgment for the Feminist Judgments Project. Herring argues that the key problem with Sheffield is that it requires a person to understand the legal trappings of the marriage contract whereas in reality ‘the relationship is key’. What they should understand is that marriage is ‘an emotional commitment to another person; and receiving a social recognition of a relationship.’ This means that the capacity to marry should involve an appreciation of what it means – socially, emotionally – to marry this person. 

Now, with my CRPD head on, I would say, in an ideal world, yes, those entering into marriage should appreciate the social and emotional nature of the commitment (and some might say that they should appreciate the legal and financial repercussions as well), but in practice many do not (when I got married I was more hazy on the financial implications of marriage should one of us die or we get divorced than I care to admit on this blog, and I suspect this is true of many people). Given that we do not declare the marriages of non-disabled people to be invalid where they did not appreciate the nature of the commitment they are making, why should we invalidate the marriage of a disabled person who failed to appreciate this? This argument, for me, is extremely hard to address. One response is that we should invalidate those marriages too – they are sham marriages. Another, which Steve B suggested on twitter, is to distinguish those people who could inform themselves about the nature of the commitment if they chose to from those who could not .  In the first place, I'm not so sure that information about the financial repercussions of marriage is that accessible to everybody who might be regarded as capable of marrying.  Furthermore, I have a feeling that in many cases this leads us back to the question of what it even means to appreciate this information. The case of AK is a good example of this problem. 

To the horror of Dr S, the independent expert instructed to assess AK’s capacity to marry, AK came pretty close passing the Sheffield criteria – when asked what marriage was he responded that ‘the Registrar marries people and the reason why two people marry is because they love each other’, he knew ‘that if people are married, they probably live together’, and that ‘if things did not work out in marriage, you could leave and go with someone else.’ Later on, when asked why people marry, he said "You have to be married to fulfil everything you want to do. You live together. Good sex. You should be faithful, for as long as you can be. Being in control of things, controlling my money". 

He did not appear to understand the financial repercussions of marriage (although, as I have said, I suspect many people do not), and he did appear confused as to whether or not you can marry more than one person (although, of course, in some cultures you can – and it doesn’t seem unreasonable in a multicultural society for a person to wonder whether polygamous marriages might be recognised as such), and then he did also show a somewhat inexplicable belief that marriage gives you holiday pay (if only!). AK’s belief that marriage would give him control over his money was treated as a false belief, but it does seem possible that he believed that once BK and he were married BK would give him a greater say in how his money was spent than those currently controlling his finances would (I could imagine that BK herself may have believed this, believing that marriage conferred LPA-style authority over a person’s property and affairs, and perhaps told him so).   [These extracts are taken from the interview transcripts at the end of the judgment, which have no paragraph numbers.]

The problem, for Dr S, the other witnesses and litigants and the court, was that although AK could probably pass a test of what marriage was about just as well as many ‘capable’ citizens, there were doubts about whether AK had ‘truly’ understood and appreciated his marriage to BK. He had, as is fairly typical for a person with serious brain damage, considerable difficulties retaining information about himself and his own life. After his marriage, in interview with the doctors, he told them he had been married eight times (he had been married twice), that he was married to a non-existent person called L, that he was not married, that he was going to get married to BK’s daughter, and so on. The MCA does say that one only needs to be able to retain information for long enough to make a decision, and there is no sense that during his wedding to BK, AK forgot what he was doing or who he was marrying. However, the court concluded that: 

The reference to the retention of information for 'a short period' in S3(3) of the Act cannot seriously be interpreted to mean, in the context of the lifetime commitment of marriage, for so short a period as AK is able to recall whether he is married at all, or reliably (when he does remember) to whom. [51] 

Clearly, forgetting who one’s spouse is doesn’t invalidate a marriage or else one’s marriage might be invalidated by any number of illnesses, injuries or toxic states. So it has to be that court is holding that when one gets married, one should not be the kind of person who is going to forget who one’s wife is in a few days, weeks or months. 

Now, when I read this judgment with my CRPD head-on, I think ‘hang on a minute, surely if somebody offered AK a reminder that he was married to BK, he would be able to remember this – and doesn’t the MCA say that we should be supporting a person’s ability to understand, use and weigh and retain information?’ Not once does the judgment discuss how BK’s understanding or retention of information could be supported, such that he could attain capacity, or could have attained capacity as the requisite time. In fact, BK’s need for support in understanding and retaining information appears to be taken as evidence of incapacity: Dr S ‘expressed the opinion that AK "...is not able to make decisions free from the influence of others as he is highly reliant on others giving him or reminding him of the facts of his current situation’ [28]. So, the case appears to be explicitly rejecting both the idea that our autonomy may be constituted through our relationships with others or that it depends upon our relationships with others. Dr S and the court appear to be endorsing the view that to have capacity a person must be able to make decisions independently. 

Now, the courts have been pretty inconsistent on this point. Most notably, the case of V v R is a pretty strong endorsement of the support paradigm – the court held that V had litigation capacity, even though every decision she made was really just endorsing the decision her mother made. Other cases (like Verlander v Rahman) regard such reliance on the third parties as evidence of incapacity, even where there is no real concern about the outcome of the decisions. And some cases, like A PCT v P, regard third parties as actively depleting a person’s capacity to make decisions, through something which looks a lot like ‘undue influence’ but which isn’t always explicitly called that. The court’s inconsistent approach isn’t all that surprising – the principles of the MCA are pretty sparse and vague, real life is pretty complex.  Our ideas about agency and personhood and autonomy are hugely complex and contradictory (which is why philosophers worry about them so much), and many of the impairments which people subject to the MCA experience are profoundly challenging for our ordinary ways of thinking about things (it goes without saying that this is because our ways of thinking about things have developed within a hegemonic non-disabled culture where people with mental disabilities were historically regarded as bestial or possessed, or - latterly - warehoused out of sight of man and law). But the consequence of all this is that the ‘language game’ of (in)capacity looks a lot like Mornington Crescent – the outcome is pretty unpredictable, the rules opaque and changeable, even though there are a few familiar phrases and gestures through which we recognise the game. To put it bluntly, it doesn’t sit very comfortably alongside the rule-of-law ideals that law is clearly defined and its consequences are foreseeable.

I’m not saying the CRPD is any better, to be honest. If we go back to Mr AK, the reason the court may be getting its knickers in a twist about the degree to which he was reliant on third parties for support, is because this made him extremely likely to adopt their own views, beliefs and preferred outcomes. Having noted that AK ‘is highly reliant on others giving him or reminding him of the facts of his current situation’, Dr S went on to say ‘He is highly vulnerable as to what information he receives and the order it is received in’. The court opined that because of BK’s strong feelings for AK, ‘she would not have been giving him information neutrally’ [45]. AK’s reliance on others to help him make sense of his situation and to make decisions, means that he would have relied upon BK to help him decide about marriage and moving in with her, and BK could (and, the court held, probably did) have given him the information in a way which would have led AK ineluctably to endorse her preferences.  As a supporter she was not exactly free of conflicts of interest - but was there anybody in AK's life who was prepared to help him understand this decision who was?

Throughout the judgment AK is described as ‘suggestible’ and ‘compliant’, as ‘going along with’ what others suggest and want. It is often thought that ‘suggestibility’ arises from disability itself; it might well also arise from power imbalances of their social situation. Various researchers using a technique called Conversation Analysis have demonstrated that because of their superior discursive skills support workers often – sometimes inadvertently – manipulate the outcomes of ‘choices’ offered to people with intellectual disabilities whom they are supporting (check out the work of Finlay, Antaki, Walton and others).  But regardless of the source of this tendency, the fact is that people with certain kinds of mental disabilities may be very ill-placed to resist being manipulated by supporters. Contra Francis and Silvers, support for decision making is not comparable to a prosthetic limb, which the wearer manipulates like a tool: there is a very real probability that some people who are reliant upon others to support their decisions will themselves be manipulated (for good, or for bad). As I noted, Article 12 CRPD does say that support should be free from ‘undue influence’, but in a context where a person’s choices can be easily manipulated by ‘supporters’, how do we know what influence is undue? 

I do not know. I have no answers. I know that in case law, influence tends to be regarded as ‘undue’ when others don’t like the outcome of decisions. I have no idea in this case whether we want to regard BK’s influence as ‘undue’ or to say that AK, with support from BK, was able to understand and appreciate the requisite information to make a decision about marriage and where he lives. On the support-model, the doctors assessing his capacity provided a very impoverished form of support because they did not remind him of his marriage to BK, they simply tested his knowledge – exam-style – of what he could tell them without any assistance or prompting. On this view, AK’s marriage may have been valid.  In support of this argument, one could argue that we can authentically claim decisions as our own even where they are heavily influenced by others because we have in some way endorsed those others as the kind of person we allow to influence our decisions. I am, in some ways, drawn to this approach – it would make sense of cases like V v R, and the use of representatives and advocates to support the exercise of legal capacity.

But at the same time, do we not sometimes endorse others as supporters where this is a terrible decision? Think of Stephen Hoskin befriending the gang who later tortured and murdered him – were they ‘supporters’, when he let them move into his flat, or was this ‘undue influence’? Or, let’s put this another way, supposing somebody whom AK likes who opposes AK’s marriage to BK (perhaps a relative, perhaps a social worker) spends some time with him, and he becomes persuaded that he does not want to be married to BK, do we accept this as grounds for divorce? As one frustrated parent put it to me once ‘why is it undue influence when I influence his decisions, but not when social services do?’ I think this is a very fair question, as is its converse, and it is not one the support paradigm (or the courts) have produced any good answers to.

As I said, I have no answers. I have no idea what to think about AK’s marriage based on the information available. I do, however, feel uncomfortable with the growing sense that neither courts nor scholars are working towards any clear and consistent principles around the relationship between support for capacity, support as evidence of incapacity, and where “support” shades into undue influence. This is a criticism I would make of the MCA as much as the CRPD. These issues are profoundly relational, and we do need some clear-thinking about relational autonomy to map out these issues. I wish I was philosopher-enough to undertake this mapping. But relationality is not the answer, it is the question. It is the new playing field for capacity in the post-CRPD landscape.

[I just wanted to add as a tangential aside, I do find it troubling in a case like this that the judge appears not to have actually met AK himself.  Since Shtukaturov v Russia (2008) and X and Y v Croatia (2011), the European Court of Human Rights has been developing what it referred to last week in Lashin v Russia (2013) as ‘the rule of personal presence’ (paragraph 82).  In sum, courts should not be making decisions about incapacity and ‘adopting decisions with serious consequences for a person’s private life’ (X and Y v Croatia, paragraph 84) without seeing or hearing the person in question.  This is partly because, as the ECtHR held in X and Y v Croatia, ‘at the end of the day, it is the judge and not a physician, albeit a psychiatrist, who is to assess all relevant facts concerning the person in question and his or her personal circumstances’ and it is for the judge ‘to decide whether such an extreme measure is necessary or whether a less stringent measure might suffice’.  It is also because, as the ECtHR noted in Shtukaturov v Russia, the person affected is a subject of the proceedings, not merely an object, and should have their chance to put their case to the judge.  The ‘rule of personal presence’ is not absolute, ‘but departure is possible only where the court have carefully examined this issue’ (Lashin v Russia).  This issue may have been examined by the court in judgments which are unpublished - but whereas judges do sometimes remark on having met P (e.g. CC v KK), they rarely explain why they have chosen not to.]