How wide is the net cast by the emerging shift and challenge to the traditional approach to legal capacity law, in terms of who is seen as a person capable of exercising and enjoying the right to legal capacity, and who is not?  If jurisprudence cautions against “[u]nwarranted findings of [mental] incapacity,” how far has the law re-drawn the boundary between those considered capable and those considered incapable?  And, in light of Article 12 of the CRPD, if a finding of legal incapacity on the basis of disability constitutes discrimination, how do we conceptualize full autonomy and exercise of legal capacity for those with significant and profound disabilities whose forms of communication may be discernible, at best, to only a very few individuals?

Many people with significant intellectual, cognitive and/or psychosocial disabilities are not able to meet the usual test of mental or cognitive capacity to retain their right to autonomy and legal capacity – i.e. the understand and appreciate test.  Indeed, it can be argued that many people without disabilities do not meet this test, if one considers the complex health procedures which a patient may need to decide on, or the complex legal and financial transactions which people authorize everyday with their signatures.  Nonetheless, this is the test that gets triggered when others question the mental capacity of a person with an intellectual disability to make a health care decision or sign a lease agreement for an apartment, or even open a bank account.

But is this the only test of what it means to be a person who exercises legal capacity? In this section, we elaborate a more inclusive definition of decision-making abilities that can provide a foundation for recognizing and respecting persons who exercise and enjoy legal capacity.  Quinn suggests that a more inclusive concept of personhood than that defined by the criteria of rationality so pervasive in legal incapacity law is

foundational to the debate about the paradigm shift of Article 12.  I leave to one side the debate about when a person becomes a person and when a person ceases to be a person.   The real debate concerns what are the essential indicia of personhood – the criteria by which we can ascribe personhood.  Are there such criteria?  What are they?[144] 

We suggest how to define the basic criteria in this section.


A.        Expression of Will and/or Intention as Human Agency

Rather than focus on tests of mental capacity, we think it helpful to ask ‘what are the actual tests of decision-making ability that most people have to demonstrate in their day-to-day affairs?’  Most discussions of contract law, for example, in any number of case law books, or even the authoritative Restatement (Second) of Contract Law published by the American Law Institute, and also that of the ‘Principles of European Contract Law’ of the European Commission, define ‘intention’ as a necessary component of entering into a contract.       

This idea that intention is the basis of human action and reflects human agency is consistent also with the theory of human action that analytic philosophy and the philosophy of law turn attention to, with the question:  How are we to determine that a particular set of events in which a human being was involved represents intentional action on the part of a human agent to whom decisions and consequences can be attributed?  While this area of analytic and legal philosophy has a long and rich tradition, there is substantial agreement around the set of ideas that what constitutes human agency is action which is informed by a person’s will and/or intention, which are motivated by a person’s beliefs and/or values about things they want or don’t want.  How we know whether action is intentional lies in how we describe the actions of others and their consequences, as intentional or willful or not. 

In formulating a minimum threshold of decision-making ability and human agency below, we refer to both ‘intention’ and ‘will’ as their foundation.  We distinguish these terms in the following way.  Intention refers to an expressed desire, an articulated goal or objective, or a plan which has been communicated.  Intention is about choosing ‘ends’ to pursue.  As Jean-Paul Sartre has written “intention makes itself be by choosing the end which makes it known.”[145]  From chosen ends, intentions can be discerned which give clear direction to others in guiding decision making.  However, some people with significant intellectual and cognitive disabilities may not be able to formulate or communicate an intention in this sense, as a clear ‘end’ to which action or behavior is directed, or at least such behavior may not be evident to others.  Nonetheless, what may be evident is the person’s ‘will’ to live, to avoid pain, to seek pleasure, safety, or security.  ‘Will’ in this sense refers to a faculty of the mind and is usually evidenced in the range of choices by which a person is seen to operate.  It’s expression represents a decision – to live, seek safety, avoid pain, etc.  The range of the will can be extremely limited, it can develop and grow over time with experience, but nonetheless it can be pointed to and described by others who know the person well; who know their history and particular way of being in the world and communicating with others. 

A large body of research points to both the unexpected abilities of people with profound and multiple disabilities to make decisions when presented with choices in meaningful ways; and to the ‘pre-intentional’ and behavioural forms of communication which can be revealed as meaningful in the context of relationships with ‘communication partners’ who know them well.[146]  Where some might describe a person’s behavior, through a psychological assessment, as ‘irrational’ or ‘meaningless,’ others, who have personal knowledge about the person, may be able to re-describe his or her actions as intentional or willful.  That is, the behavior communicates a person’s will and/or intention to do or not to do something.  In this account of will and/or intention, what is critical is that another person or group of people who know a person well can provide a description of his or her behavior that draws the connection between a person’s intention or will and their behaviour.  In their description are made the links between a person’s intention or will, the actual things a person does, how they move, the sounds they make, the things they want to happen, and the interventions of others to assist a person in giving effect to those intentions; helping that person carry out, through consequential actions, the intentions they set.  Through what Joel Feinberg calls the ‘accordion effect,’ the descriptions and re-descriptions of human action and their consequences can be told and written to reveal human agency, or to deny it.[147]

For example, Audrey Cole, a parent of a man with a profound intellectual disability, and also a thinker, writer and activist on advancing alternatives to guardianship and a supported decision-making model reflects on the meaning of human will this way:

…human will – that instinctive and inherently human imperative, that sense of being, that thing that tells us we are here, that we can feel.  I honestly don’t think it has anything to do with intellect. Ian [her son] has it!  It is what makes him stop, suddenly, and listen to the sounds of the birds or of the wind blowing through the trees.  I am sure it is what makes him so sensitive to music.  It is also what makes him instinctively draw back or resist things he doesn’t understand (such as an unfamiliar medical procedure, for example).  And it is certainly the thing that has prompted him on a couple of occasions when Fred [her husband] had been in intensive care to gently reach out and stroke Fred’s arm – an intimacy that is not typical of Ian who usually would have to be prompted to make such personal contact.  I don’t know what it is but I do know we all have it!  And if we take the trouble to get to know people who do not communicate in typical ways, we become very conscious of it.[148]

The criterion of decision-making ability, that one is able to express their intention or will, and that it serves as a basis for agency through time, in at least some description by a community of knowing and valuing others, has strong foundations in philosophy.  It is much more disability-neutral and inclusive than the criterion of demonstrating understanding of information and appreciating consequences of a range of choices available, to which people with intellectual, cognitive and/or psychosocial disabilities are so often subject.


B.        Personal Identity: a ‘Narrative’ Approach to Human Agency

The expression of intent or will is philosophically sound as a basis for ascribing human agency.  However, on its own, it may still not be enough for some parties to recognize the decision making ability of an individual with more significant disabilities.  They may not be convinced that a person’s intention or will expressed and described in one situation or at one point in time, can be trusted enough over time to constitute their intention or will as the basis of legal relations like a contract.  This is the criterion of ‘personal identity’ first formulated by the Enlightenment philosopher John Locke in the 17th century.  His related theory of the ‘continuity of consciousness’ through time as the basis of self-consciousness influenced major political philosophers including Jean-Jacques Rousseau and Immanuel Kant, and their use of ‘reason’ and rationality as the tests of moral and legal personhood and capacity to act.

When the usual criterion of capacity states a person must understand information and appreciate the nature and ‘consequences’ of a range of choices and decide among them, the test is requiring a measurement of ‘personal identity.’  That is, the test is requiring that an individual have a capacity for memory so that the person who acts to enter a contract at one point in time can be trusted by the other party to understand its ‘consequences’ for their obligations into the future.  Thus, testing for memory is often one of the main ingredients of capacity testing.  It is why people with significant intellectual, cognitive o