The Phenomenology and Ethics of P-Centricity in Mental Capacity Law

Abstract

Under the Mental Capacity Act 2005 (MCA) in England and Wales, the liberal commitments to subjective freedom guide obligations towards persons who do not lack capacity. For the subject of proceedings who might lack capacity (P), it is less clear as to what obligations orient best interests decision-making on their behalf. The UK Supreme Court has emphasised the centrality of ‘P-centricity’ in best interests decision-making, where there is the legal obligation to consider P’s subjective views and wishes in a holistic consideration of best interests. Unclarity nonetheless persists as to what is owed to P in the best interests standard, leading to the tendency to interpret obligations of P-centricity through the normative prism of subjective autonomy. This paper argues that such moves reduce the complex moral phenomenology of what a P-centric ethos entails. Instead, the phenomenological and ethical stance of moral considerability and recognition respect can best capture the enriched normative grounding for P-centric decision-making in mental capacity law.

Introduction

The importance of preserving and respecting the right of autonomy of individuals is deeply entrenched in liberal philosophical thought and the common law tradition. The prevailing image of individuals as beings whose freedom warrant the protection of the law is often presumed to be foundational to the conception of rights, and indeed, to the inflection and priorities of contemporary human rights. Though often purported to be universal, this liberal vision of individual autonomy in the common law tradition has typically relied on an implicit boundary that excludes persons with cognitive impairments (i.e. those with learning disabilities, autism, mental disorder, dementia, etc.) from enjoying the same right of self-determination over their own lives.¹ With the advent of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), however, it is thought that the right to make one’s own decisions has been likewise extended to those with disabilities, particularly with the Committee’s interpretation of Article 12 in the CRPD which severs the contingent link between the right of autonomy with a threshold of decision-making capacity and its treatment of subjective right, will, and preferences as primary.²

This notion of subjective autonomy as having overriding importance in the lives of persons with disabilities has increasingly filtered into legal interpretation of domestic mental capacity law regimes.³ However, this has led to uncertainty regarding the normative underpinnings that guide the treatment of individuals on both sides of the capacity divide, i.e. people who have or lack decision-making capacity. Paradigmatic of this tension would be the Mental Capacity Act 2005 (MCA) in England and Wales. Under the MCA, persons who are not deemed to lack capacity are free to make their own decisions regarding their care, treatment, and financial affairs. Following a long common law tradition, the liberal commitment to subjective freedom and self-determination guides statutory requirements towards persons with capacity – if one has capacity, one is free to make one’s own decision, no matter how unwise it may be.⁴ By contrast, individuals who are found to lack capacity under the MCA have decisions made on their behalf according to a best interests standard and are not necessarily granted the same freedom or right to self-determination. Instead, according to s.4, a decision-maker must take into account, amongst other things, the following requirements and considerations when deciding or acting on behalf of the subject of proceedings (P):

• Whether the person will regain capacity;⁵

• The participation of the person who lacks capacity so much as reasonably practicable;⁶

• The person’s past and present wishes and feelings, as well as the beliefs, values, and other factors that would likely influence the person’s decisions if s/he had capacity.⁷

The MCA’s principled underpinnings suggest two normative imperatives of autonomy and welfare orient obligations owed to individuals. These imperatives not only potentially demarcate the treatment of persons depending on which side of the capacity divide they occupy, but also characterise a potential conflict within the best interests standard itself. The Supreme Court judgment of Aintree University Hospital NHS Foundation Trust v James has been thought to settle longstanding problems associated with competing imperatives in the best interests standard.⁸ The judgment holds that significant weight ought to be placed on the subjective values, wishes, and feelings of P in a holistic consideration of best interests, even in cases where the escalation of treatment is not likely to lead to recovery or an improved quality of life. This decision suggests that it remains possible to make an objectively ‘unwise’ best interests decision for P – a decision that accords with what P would have chosen, but contradicts what clinical professionals deem to be ‘objectively wise’ for P – thus counterbalancing the priority often placed on a person’s safety in the best interests analysis. As such, the principle of autonomy is ostensibly considered to be central – perhaps even primary – to approaches on both sides of the capacity/incapacity divide.

In practice, however, the approach advocated in Aintree has proved more problematic. The MCA’s requirement that best interests decisions must consider the wishes, feelings, and values of P can be dismissed through an appeal to other, putatively ‘objective’ considerations of best interests, suggesting limits to the liberal commitment to subjective freedom in judicial interpretations of the best interests standard. Cases involving significant communication barriers or longstanding/lifelong incapacity due to profound disability illustrate particularly inconsistent interpretations of how best to discharge one’s legal and ethical obligations to P within the best interests standard.

The failure of Aintree to provide much sought after moral and legal clarity in terms of what is owed to P is symptomatic of two broader issues within mental capacity law. First is a problem of normative framing, where issues of moral complexity and uncertainty are commonly treated as reducible to a conflict between the values of autonomy and welfare. This binary has, incidentally, made mental capacity law regimes more susceptible to external critiques associating the best interests standard with the disrespect of persons with impairments through unwarranted paternalism.⁹ Moreover, this reductive lens of autonomy vs. welfare likewise gives the impression of normative instability internal to the principles of the MCA, with profound effects on persons whether or not they have capacity: from the direction of capacity, obligations to persons with decision-making capacity appear nominal – confined to protecting a sphere of negative freedom to the neglect of providing positive institutional supports that might well be required. By virtue of having the basic right of freedom to take decisions about their life, the purported wisdom of such decisions is irrelevant and cannot call into question the capacity of such individuals. From the direction of best interests, obligations to respect or consider the views of persons with lifelong incapacity or in the face of communication barriers appear dispensable based on the discretionary judgment of the best interests decision-maker. Perhaps due to the discomfiting implications surrounding a criteria-less notion of autonomy, these discretionary judgments often ride on cognates of a more demanding standard of decision-making (e.g. an idealised, hypothetical person with capacity, or ‘what a person with full capacity might reasonably consider’) to which the incapacitated person is subject. As a result, the ‘ideal person with capacity’ embodies and expresses an altogether more substantive (though underdeveloped) criterion, which departs from the laissez-faire freedoms and minimal normative standards that ostensibly apply to persons with actual capacity under s.1(4).

Following on from the reductive normative framing of the MCA is the second problem of how its P-centric ethos has acquired an overly subjectivist inflection, thereby rendering unclear the import of this ethos as a way of negotiating the moral uncertainty that characterises much of best interests decision-making. In this stark normative landscape, Aintree’s much-lauded focus on a ‘P-centric’ approach to decision-making is often interpreted as a corrective to excessively paternalistic interpretations of the best interests standard, reiterating a commitment to empowering persons to make their own decisions. P-centricity in the best interests standard, and the empowerment ethos within the MCA more generally, is therefore thought to entail a liberal commitment to subjective freedom, where the preferences of the individual are treated as paramount. Indeed, the MCA is not alone in making this association: the conflation between P-centricity and/or empowerment with the overriding priority of subjective autonomy is most emphatically endorsed in the General Comment on Article 12 by the Committee on the Rights of Persons with Disabilities, where its well-known (and controversial) interpretation of universal legal capacity stipulates the unconditional respect for the ‘rights, will and preferences of persons with disabilities and should never amount to substitute decision-making’.¹⁰

These two issues combined have led to an impoverished understanding of P-centricity as a common normative grounding for obligations to all individuals, regardless of where they sit on the capacity divide, and indeed, within what it means to respect persons with disabilities more generally in the context of human rights. In this paper I want to critically examine the concept of P-centricity as a means of clarifying, enriching, and deepening our normative orientation towards persons in best interests decision-making, in a way which will also have implications for persons not found to lack capacity. The meaning of a P-centric ethos is particularly important to explore in cases that involve persons who have lacked decision-making capacity all their life and/or where communication barriers make it difficult to determine their values in judicial deliberation.¹¹ Exploration of the common normative grounding across the capacity divide will help reveal that a P-centric ethos in mental capacity law is not reducible to the uncritical accession of P’s subjective wishes, and at a deeper level, involves the phenomenological and ethical stance of moral considerability and recognition respect. This paper argues that this analytic lens can help confront and navigate the moral complexity that is intrinsic to the best interests standard and mental capacity law more generally, even as decisions are often reduced to the binary frame of autonomy vs. welfare. And though much of my analysis focuses more narrowly on the MCA, my argument will also be important for resisting increasingly subjectivist interpretations of the CRPD, where analysis of P-centricity through a phenomenological lens will help enrich what it means to engage substantively with the ‘rights, will and preferences’ of individuals.

Section II explores how the case law suggests judicial uncertainty regarding the normative foci of the best interests standard, but with some indication that there are legitimate legal constraints to autonomy due to the complex issues at stake. The temptation to reduce this complexity to an autonomy lens leads to unclarity regarding the normative vector of P-centricity and what it entails. Section III of the paper explores the phenomenology of moral considerability and recognition respect as a way of drawing out common ethical obligations to P that come prior to the commitments of autonomy and welfare in mental capacity law. Section IV draws out the practical implications for the practices of mental capacity law, concluding that the ethical prism of moral considerability can help reveal a common ethic guiding the treatment of persons on both sides of the capacity threshold.

Legal Constraints to Autonomy

From the standpoint of judicial logic, attempts to articulate P-centric obligations that cut across the boundary of capacity and incapacity have proven difficult. Much of this turns on interpretations of the empowering ethos within the MCA, particularly in the best interests standard. If the unifying thread of empowerment running through the MCA is coextensive with a person’s self-determination, presumptive weight would be accorded to the subjective wishes of P in the best interests standard, possibly irrespective of the wisdom, value, or rationality of those wishes. Equally, appeals to other criteria gesture towards a more evaluative framing to the meaning of P-centricity and help avoid excessively subjectivist interpretations. Reliance on substantive cognates of wisdom, rationality, and objectivity would, however, putatively violate the Supreme Court’s rejection of applying an objective test (i.e. what the ‘reasonable patient would think’) to determine a patient’s wishes and feelings, and turns on the discretion of best interests decision-makers, such as judges, which, for better or worse, can sometimes treat the obligation to consider P’s perspective as unnecessary.¹²

Tensions in best interests decision-making speak to the moral complexity that is intrinsic to both the phenomena (i.e. the types of cases that are being decided) and the substantive deliberative mechanisms that are necessarily involved in deciding in light of such complex phenomena (i.e. the intuitions, values and reasons that inform a decision). The normative framing of mental capacity law must attend to the complexity at both levels accordingly. As such, discretion in and of itself is not the problem – rather it is the failure to provide some normative anchor or vector to such discretion. P-centricity is often understood to be this normative vector; yet the concept in its current form – often used as shorthand for a thin autonomy lens, based primarily on acceding and prioritising subjective wishes – is insufficiently nuanced to help anchor discretionary best interests judgements in a transparent and justifiable manner. For example, Jackson J (as he then was) in Wye Valley NHS Trust v B challenged the narrow autonomy lens of policy proposals by the Law Commission¹³ to include a rebuttable presumption that would make P’s subjective wishes and feelings determinative unless there was a ‘good reason’ for a departure from the assumption. Rather than generating greater certainty, there would be debate about whether there was a ‘good reason’ for the departure and ‘to elevate one important factor at the expense of others would certainly not have helped the parties, nor the court, in the present case.’¹⁴ Proper application of s.4 of the MCA would in fact generate the same result.

Reference to the judgment in Aintree may in fact gesture towards a more enriched normative vector:

The purpose of the best interests test is to consider matters from the patient’s point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want. Nor will it always be possible to ascertain what an incapable patient’s wishes are. Even if it is possible to determine what his views were in the past, they might well have changed in the light of the stresses and strains of his current predicament. […] [I]nsofar as it is possible to ascertain the patient’s wishes and feelings, his beliefs and values or the things which were important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being.¹⁵

Commentary has typically taken the latter half of this paragraph to imply a subjectivist interpretation of P-centricity in the context of best interests decision-making.¹⁶ The first three sentences, however, are particularly insightful in their qualifications of negative liberty, whether or not one has capacity: in other words, it is a mistake to assume that a person with capacity has unconstrained liberty to have their wishes prevail. Within the context of the Aintree judgment Lady Hale likely had in mind constraints of what is practicable, medically possible, clinically appropriate, etc. Similar reservations around autonomy were made in an earlier Court of Appeal judgment, R (Burke) v General Medical Council & Ors.¹⁷ In the original judgment¹⁸ Munby J (as he then was) supported Leslie Burke’s case that clinical staff would be obligated to provide basic care, including artificial nutrition and hydration, against what Burke had thought to be ambiguous guidelines around withdrawal of treatment provided by the General Medical Council. Munby J reasoned that Burke’s entitlement to life-sustaining treatment hinged on the right of autonomy, suggesting that

The personal autonomy protected by Article 8 means that in principle it is for the competent patient, and not his doctor, to decide what treatment should or should not be given in order to achieve what the patient believes conduces to his dignity and in order to avoid what the patient would find distressing. A competent patient’s Article 8 rights – his rights to physical and psychological integrity, to autonomy and dignity – must prevail over any rights or obligations located in Articles 2 and 3.¹⁹

The Court of Appeal, however, challenged the judge’s reasoning:

The proposition that the patient has a paramount right to refuse treatment is amply demonstrated by the authorities cited by Munby J in paragraphs 54 to 56 of his judgment under the heading ‘Autonomy and self-determination’. The corollary does not, however, follow, at least as a general proposition. Autonomy and the right of self-determination do not entitle the patient to insist on receiving a particular medical treatment regardless of the nature of the treatment. Insofar as a doctor has a legal obligation to provide treatment this cannot be founded simply upon the fact that the patient demands it. The source of the duty lies elsewhere.²⁰

This duty ‘elsewhere’ remains rooted in the common law where medical practitioners are obliged to do what is clinically reasonable to sustain a person’s life unless she withholds consent. But this duty to prolong a patient’s life is ‘not absolute’, where cases involving persons who lack capacity and in circumstances of ‘extreme pain, discomfort, or indignity to the patient’ may absolve medical practitioners of this positive duty.²¹

There is therefore important legal precedent for limiting the right of self-determination, regardless of if a person is judged not to lack capacity. It is nonetheless interesting how tempting it is to interpret the normative framing of and obligations in mental capacity law through the narrow prism of autonomy (i.e. focused on deference to subjective wishes regardless of qualitative content). Judicial interpretations of the MCA have sometimes fallen into this trap – for example, the judgment in Re S (Protected Persons)²² is a clear example of the difficulties inherent to judicial attempts to interpret the value of autonomy as the unifying normative thread across the capacity / best interests threshold. Even so, there is recognition of the limits of an overly liberal interpretation which upholds subjectivist criteria for the best interests standard, appealing to substantive criteria that rides on the idealised ‘person with full capacity’ which effectively places constraints on deference to P’s subjective wishes.²³ Conceptual analyses of mental capacity can fall into a similar trap in an attempt to enrich the concept of autonomy that operates within this area of law – either in the acknowledgement of its relational constituents or in the possibility of promoting the conditions of autonomous agency through positive means.²⁴ However, these arguments mistakenly treat the moral uncertainties in this domain of law as resolvable at the conceptual level – i.e. with the correct understanding of autonomy – and ultimately reflect the temptation to frame obligations of P-centricity through the prism of a single normative concept, effectively reducing its complex moral phenomenology.

The deeper point we might draw from the Court of Appeal decision in Burke and the Aintree Supreme Court judgment is that consideration owed to individual perspectives might be separable from a strict obligation to accede to them. Or to give a different inflection to the same point, even where subjective wishes might be enacted, a P-centric ethos could be absent. A more nuanced and unitary P-centric ethos does not necessarily hinge on subjective autonomy as the trump card, whether or not one has capacity. Even if one has capacity, ‘we cannot always have what we want’ – i.e. our liberty, our subjective will, wishes, etc., are enframed within other considerations and duties that might well mean they are not enacted.

This insight indicates that P-centricity interpreted through a narrow autonomy prism fails to track how, from a legal perspective, other duties and obligations often constrain the right of self-determination. Nonetheless, there is the presumption that discharging those other duties and obligations – particularly if the decision goes contrary to P’s subjective wishes and feelings – would depart from a P-centric approach. Yet best interests decisions that override P’s subjective wishes and feelings can still place the person at the centre of the procedure and substance of the decision. Equally, it remains possible to make an objectively ‘unwise’ best interests decision for P – a decision that accords with what P would have chosen, but contradicts what others (e.g. medical, legal, and social care professionals) deem to be ‘objectively wise’ for P. For example, HHJ Marshall QC in Re S rightly states that in making a best interests decision as to whether P’s wishes should be overruled, ‘due regard must […] be had to the sense of frustration, impotence, anger, and lack of self-worth which P […] might experience’.²⁵ So long as there is a focus on pinning down the content of the values of autonomy or welfare, or the substantive norms in different sections of the MCA, the obligations and treatment owed to persons with disabilities will continue to appear dualistic and unstable in orientation. Similarly, obligations to respect the ‘right, will and preferences’ in accordance with the CRPD will also lack the depth of substance read through thin obligations premised on respect for subjective autonomy over all considerations. Some reconceptualisation of the normative grounding of what P-centricity means from an autonomy lens is clearly needed. We must look to phenomenology to find an ethical framing that can encompass this broad spectrum of P-centricity.

P-Centricity as Moral Considerability and Recognition Respect

Closer attention to the ethical phenomenology of moral considerability and recognition respect might illuminate a common experiential and normative grounding that can inform common obligations owed to persons, irrespective of whether or not they are found to lack mental capacity under the law.²⁶ This P-centric ethic is prior and separable to the principles of autonomy and welfare: prior in the sense that it is a both a primary experience and duty at the core of every interaction with persons who might be the subject of mental capacity proceedings; prior too in the sense that it is the condition on which obligations of autonomy and welfare ought to be discharged. In this way, deliberations and outcomes that respect autonomy or promote welfare can be aligned with or depart from P-centricity – there is no prima facie presumption that one value is coextensive with this ethic.

Moral considerability describes the primary consideration that is owed to P as a person who is to be attended to, without prior assumptions about their value or any limiting criteria. According to Birch:

To give moral consideration to X is to consider X (to attend to, to look at, to think about, where appropriate to sympathize or empathize with X, etc.) with the goal of discovering what, if any, direct ethical obligations one has to X.²⁷

The expansiveness of this basic definition is noteworthy. The notion that persons with disabilities warrant consideration independent of any criteria may seem a nominal normative shift, but its full significance emerges when compared to conventional notions of considerability which have typically hinged on establishing some kind of criterial foundation. Candidate features, such as rationality, hedonic interests, species membership, and so on, purportedly demarcate those within and beyond the circle of considerability. Those who pass the threshold acquire a certain status and, by implication, obligations of respect or certain treatment are owed to those in possession of such features.²⁸ Depending on where the bar is set or which features are thought to be necessary, persons with cognitive impairments are often treated as non-members – the exceptional or contrast cases – thus excluding them from specific rights, entitlements, or moral regard.²⁹

As Goodpaster points out, such criterial approaches rest on a contentious conflation between questions of moral considerability (i.e. what we ought to consider as ethically appropriate to attend to) and questions of moral significance (i.e. what weight we accord to competing claims) due to the presumption that the former is determined by, or reducible to, the latter. This conflation disregards the primary sense of considerability as the attentive, reflective contemplation of something, where certain things matter intrinsically and warrant such attention without predetermining how we relate and value it. For example, whether P deserves moral consideration is a separate and different question to that regarding the criteria by which competing claims regarding P are adjudicated; to recognise P’s moral standing (as in deserving concern) need not depend on answering the latter.³⁰

Considerability therefore rests on a broad rather than limiting perspective in the assumption that certain persons, entities, and so on, matter in their own right. Such concern does not depend on defining and maintaining certain criterial boundaries, nor does it predetermine what value those entities possess. The potential positive value of X is a prima facie assumption, ‘giving others of all sorts a chance to reveal their value, and of giving ourselves a chance to see it’.³¹ What are and are not our objects of consideration is a question that is kept open, setting aside problematic assumptions that only certain kinds of persons, with certain kinds of traits, are worthy of moral concern. Thus, moral considerability is a particular normative orientation that is constituted by a kind of receptivity, attunement, and provision of space for which the intrinsic value of an entity might be revealed. What results is the continual reconsideration of practices in ‘both their general form and their particular applications’.³² As Birch writes:

[G]iving this sort of consideration, or attentiveness, to something does not settle the question of the appropriate obligation or practical necessity, if any, that may arise in relation to what is so considered, it does not produce the paralysis for action that would generally follow from having to give everything high regard or positive value (the second definition).³³

The various reasons behind moral consideration are left open, allowing for the different ways in which practices and relations can be ethically responsive.

This discussion of moral considerability helps describe the deeper phenomena and normative stakes behind the meaning of P-centricity. Especially for a person with severe communication barriers or lifelong incapacity, challenging these criterial approaches is crucial to show how such individuals warrant the type of attentiveness and attunement constitutive of moral considerability. The tendency to make P-centricity coextensive to respect for subjective autonomy in some ways tracks a similar discomfort with criterial approaches, seemingly most evident when the subjective wishes of persons in best interests decisions are overridden in ways that sharply demarcate the treatment of persons on the other side of the capacity threshold. The difference lies, however, in how the basic reality of moral uncertainty and indeterminacy is addressed: moral considerability provides an orientation that accepts this reality and gives vital space to become accustomed to and negotiate the complex ethical phenomena. Overly subjectivist interpretations of P-centricity, by contrast, end up reducing these inevitable uncertainties, where the tensions in the MCA are ostensibly framed around a conflict between subjective expressions of autonomy vs. objective goods that are paternalistically imposed (implicit in judicial references to ‘actual’ vs ‘hypothetical person with capacity’, as discussed below). But this crude way of conceiving these tensions ignores the deeper ways in which even in situations where subjective autonomy wins out – those instances where a person’s wishes and feelings are determinative and liberal freedom is seen as paramount – the ethic of moral considerability could be absent. Through this lens, P-centricity does not fall out of the picture, whether or not P has capacity, and more specifically, whether or not P’s subjective wishes are treated as primary and acceded to.

On this analysis, a P-centric ethos in mental capacity law does not necessarily prioritise autonomy whilst eschewing other substantive considerations. The responsive practices which express and reflect an orientation of moral considerability remain open-ended. As Birch argues:

The lesson of history is that we must open up the question of moral considerability and keep it open, not close it off again by instituting practices based on the latest, and no doubt mistaken, “final” criterion.³⁴

There is nonetheless a core deontic experience that is central to the idea of moral considerability: a sense that one must be and is called upon to do something, that one must be attentive, respond appropriately, and relate responsibly to the object, person, or entity being considered.³⁵ Whilst there is a prima facie presumption of the positive value of X, we might nonetheless be persuaded otherwise, where X has negative value and it becomes a practical requirement to eradicate or despise something. The lens of considerability can only get us so far. The content of the deontic urge needs to be clarified in ways that help pin down the positive valuing of persons in mental capacity law: specifically, what is the core experience of showing ‘due regard’³⁶ to individuals whether or not they are found to have or lack capacity, and how does this ground a consistent normative ethos towards such persons, whether or not their values and wishes are determinative in best interests decision-making? In short, we need to pin down what direct obligations follow from treating subjects in mental capacity law with moral consideration.

Here, the phenomenology of recognition respect is particularly illuminating. In contrast to the type of respect that is bound up with particular merits or distinctions (what Darwall calls ‘appraisal respect’), recognition respect does not demarcate between different persons: as qua persons all (in theory) are entitled to have others ‘take seriously and weigh appropriately the fact that they are persons in deliberating about what to do’.³⁷ I use Darwall’s definition of recognition respect very loosely, as reference to ‘persons’ and ‘deliberation’ on his account imports a criterial approach towards who is owed respect, based on normative specifications of who/what qualifies as a person, whether respect hinges on achieving a common standard of moral deliberation or practical reasoning, and whether conditions of reciprocity can be met.³⁸ For my purposes here, I do not necessarily wish to accept these terms, but refer instead to a more existential and experiential form of recognition respect, what I define as ‘acknowledging, taking seriously, and weighing appropriately the fact that they are persons with a separate consciousness and being’. This modified definition refers specifically to the phenomenology of coming into contact with other persons and how this sparks a special kind of experiential awareness and other-directed attitude that is both empirically and normatively significant.

There are two sides of this awareness from a phenomenological stance. On one hand, our perceptions and interactions with others start with the automatic presumption that I along with you belong to a shared world. This sense of a shared world is pre-reflective, meaning that it is not the result of cognitive thought or reflection, but is an instinctive and constitutive condition of our perceiving. Merleau-Ponty’s examples of an infant’s mimicry help illustrate its primitive origins in the body and shows how bodies express an intercorporeal connection to others that will eventually form the intersubjective basis of one’s interactions with the world and others:

A fifteen-month old baby opens his mouth when I playfully take one of his fingers in my mouth and pretend to bite it. And yet, he has hardly ever seen his face in a mirror and his teeth do not resemble mine. His own mouth and teeth such as he senses them from within are immediately for him the instruments for biting, and my jaw such as he sees it from the outside is for him immediately capable of the same intentions. “Biting” immediately has an intersubjective signification for him. He perceives his intentions in his body, perceives my body with his own, and thereby perceives my intentions in his body.³⁹

This example shows how, from early on, our embodiment expresses a deep empathy and intersubjective connection with those around us. What Matthew Ratcliffe calls ‘mundane empathy’ captures this prior, taken-for-granted background presumption that selves and others inhabit and are immersed in the same world.⁴⁰ The sense of a sharing a common world does not change when we develop consciousness and reflexivity of our subjectivity in relation to others, i.e. when we have both self- and other-awareness and exist as both ‘subject’ (where one exists for oneself) and ‘object’ (where one’s actions, dealings, and expressions are observable by others, and vice versa). We intuitively recognise that our individual subjectivity will lead to different experiences and dealings with the world, but our perceptual architecture situates those differences within a habitual sense of joint immersion that automatically presumes the coherence of my perceptual world with another’s. This orients our everyday interactions with our environment and with others; it enables us to navigate these interactions with an embodied, pre-reflective skill; it facilitates our interpretive understanding of the movements and dealings of others.⁴¹

On the other hand, the phenomenology of coming into contact with the consciousness of another can also be disruptive, particularly where the experiences of the other challenge the sense that the world is perceived in a similar way and that there is even a shared reality. Instances of mental disorder, of mind difference like autism and learning disabilities, of severe communication barriers, can bring to the forefront core experiential differences – where the very form of perception differs and the presumption of a shared world with another becomes no longer obvious. Whereas mundane empathy helps maintain a perceptual sharedness between different subjects, profound divergence in experience reinforces the depth of another’s ‘alternative intentional-directedness’,⁴² where the other has a conscious awareness that represents an alternative ‘worldmodel’ or experiential horizon of her own. In the case of mind difference, this worldmodel is not just superficial (in the sense of representing different subjective intentions, wants, and desires) but rather encompasses a completely divergent way of perceiving and engaging with the world that is irreducible to my taken-for granted way of seeing and experiencing the world. There is a complete sense of their otherness or alterity which demands changes in our normal, everyday phenomenological stance.

How one responds to this difference is critical. We could minimise these differences and pretend they are non-existent, or we might probe these differences merely at the surface level, focusing on divergent experiential content but ignoring more fundamental discrepancies at the level of experiential form. These tendencies, however, fail to reflect both the phenomenological stance and ethical orientation that is required to embody my more existential version of recognition respect. There are two facets to this orientation, as I explain below: first is the aspiration towards what Matthew Ratcliffe calls ‘radical empathy’ as opposed to ‘mundane empathy’;⁴³ second is the descriptive and normative experience of inviolability. Both are other-directed attitudes that allow space for the distinctiveness in content and structure in others’ experiences of the world. They are also self-affecting, whereby openness to experiential differences impacts on one’s own consciousness and alters the ethical response to such difference.

First, explicit acknowledgement of experiential differences demands a form of ‘radical empathy’, particularly where profound differences in engagement and dealings with the world fundamentally challenge the sense of belonging to the same world. Radical empathy is a more ‘unusual’ mode of phenomenological engagement that ‘expands the range of intelligible experience’⁴⁴; it involves suspending the ordinary presumption of a shared world that constitutes the phenomenological stance implied in mundane empathy, in order to make better sense of thoroughgoing variations in experience – particularly those experiences that take an altogether different form and elude common understanding. For example, appreciation of the unique way that a non-verbal autistic person experiences the world requires one to see how that experience is for them, not through the prism of one’s commonplace perceptual stance. Radical empathy suggests that, in order to achieve such appreciation, one must set aside the presupposed commonality that is habitual in our ways of perceiving. In most circumstances, the presumptions of mundane empathy might serve us in engaging in skilful interactions with the world and with others. But in cases of profound experiential variation, such as the non-verbal autistic person, that presupposition functions as a barrier to making another’s experience more understandable to us.

This notion of radical empathy appears negatively defined (i.e. suspending commonality, setting aside the presumptions of mundane empathy) and grounding it in practical examples would help illustrate how it operates as an alternative phenomenological stance. Naoki Higashida’s writings about his experiences as a non-verbal autistic individual illustrate well the various challenges associated with what from the outside appear to be his obsessive thoughts and repetitive behaviours.⁴⁵ For instance, Naoki discusses how he controls his anxiety when going to a train station by habitually looking through the confectionary or merchandise of the station souvenir, on the lookout for anything with a famous cute kitten character in clothes or objects – not to buy, but simply to satisfy an urge that ‘There it is’. He describes,

I’d already gone through the ticket barrier. I badly needed to retrace my steps to the souvenir shop I’d just left. […] [O]n this occasion I really had to go and see those items one more time – I had no say in this whatsoever – so I went back out of the gate I’d just gone through. The onlookers were pretty shocked: I’d barged out the wrong way without asking permission from the station staff. Very soon, a station officer caught up with me to demand an explanation, but all I could do was shriek the name of the kitten character over and over. To make matters worse, by now the officer was telling me, ‘Stay where you are – don’t move, please!’ while I was trying to dash off to the souvenir shop.⁴⁶

Naoki’s experiences show how his observable actions and verbal cues are unexpected; the sense of shock and violation of certain intersubjective norms on the part of the station staff itself reinforces the implicit force of mundane empathy and the disruption that is experienced when the presumption of a shared world might be in question. With mundane empathy, we lack the phenomenological orientation that is required to make space for and engage with Naoki’s unique mode of perceiving; we remain oblivious to the fact that the presumed coherence between his experience and mine is unsustainable – even a barrier – to opening ourselves to his distinctive way of moving in the world, such that his actions are meaningful (rather than merely inexplicable) for him. Recognising that one may not inhabit the same perceptual world is thus the first step towards transforming radical empathy into an other-regarding attitude that is more receptive to, and may become better at imagining, understanding, or interpreting, variations in experience – not just with regards to content, but also with the very structure of how one experiences. As Ratcliffe notes, it might even mean we are at a loss as to how to describe or capture Naoki’s experiences: it may be uncapturable in the language that we commonly use to anchor descriptions of our perceptions, and the best we can do is to simply acknowledge that his way of inhabiting the world, his mode and sense of belonging to the world, is profoundly different to mine.⁴⁷

Second, suspending the ordinary sense of a common world leads to the descriptive and normative experience of inviolability, where the intentional directedness of another, as a fact, cannot be fully grasped, evidenced, or controlled. This experience of inviolability is self-affecting in an empirical sense, in that it modifies one’s consciousness of what is possible and makes one aware of one’s limitations (i.e. the contents of other conscious minds are not fully knowable). But it is also a normative, other-directed experience that is action-guiding in a negative sense, where ‘the appreciation and awareness of [another’s inviolability] does not inspire us to action, but on the contrary makes us pull back and tread with extra care’.⁴⁸ This sense of extra care, pulling back, and so on respects the inviolability of another’s conscious experience, so that one refrains from correcting others about their intentionality and mental states, and vice versa.⁴⁹ The payoff is in the fact that this leaves some space for the understanding of and engagement with entirely different ways experiencing the world, such that the experiences of another are no longer isolating and alien, but enrich our notion of what is possible. Naoki again provides a wonderful example of this. He describes how picture books would leave him cold as a child, leading him to run off when his mother tried to read to him, or he would have a complete lack of response. For him, his mum reading the book was ‘just another noise – like the sound of lots of people talking all at once’.⁵⁰ He writes:

One day, however, she noticed how often I was looking through old photographs. So Mum put together a photo book using our family pictures, and wrote short sentences alongside the images. It was thanks to this that the whole point of picture books ‘clicked’ for me, and from then on the number that I enjoyed steadily grew. Also, I could begin to relate my everyday self to the characters in the books.⁵¹

His mother’s attunement to his experiences, his projects, was the key to unlocking his enjoyment of reading and helped trigger his imagination. Pulling back with care and refraining from the impulse to project and impute certain mental states or intentional projects provides, by default, the positive space to appreciate and be affected by the genuine experiences, activities, and projects of another. What is possible in the world is no longer defined purely through one’s own mode of engaging with it.⁵²

Implications

This analysis of a more phenomenological orientation to obligations of P-centricity leads to subtle but important implications for mental capacity law frameworks and the imperative to respect the rights, will, and preferences of persons under the CRPD. The fact that the ethical phenomenology of moral considerability and recognition respect is action-guiding mainly in a negative sense – as in acknowledging difference, inviolability, and pulling back with care – helps explain why a concrete, positive definition of best interests, and indeed, P-centricity, proves to be so elusive.⁵³ As well as diagnosing why these concepts are difficult to pin down, this more phenomenological orientation also helps highlight the depth of meaning and ethical justification behind the requirement in s.4 of the MCA to fully consider P’s perspective, in terms of what it means to provide interpretive and expressive space for P’s mode of experiencing and engaging with the world. It is for this reason that the implications of my analysis may extend beyond the confines of the MCA and into the substantive realisation of what it means to respect the human rights of persons with cognitive impairments within the CRPD. However, I would also suggest that the phenomenology of moral considerability and recognition respect cannot be easily pinned down in formal legal standards, nor would it be exhaustive of the legal considerations in mental capacity adjudications or best interests decisions.⁵⁴ By its nature a phenomenological approach to P-centricity remains relatively inchoate as a normative standard for mental capacity law regimes because it refers to fostering an attitudinal, interpretive orientation that is more conducive to making sense of P’s potentially distinct way of experiencing the world within the procedures and substantive application of the law.

One way for its practical delivery could come through professional training to help foster a professional comportment that expresses radical empathy – namely, curiosity about and humility towards the ‘worldmodel’ of P, facilitated through ‘soft’ interpersonal skills that tend to be minimised or undervalued within the formal constraints of the law.⁵⁵ It is remarkable to note, for some example, that legal practitioners or judges within England and Wales are offered no training courses on the experiential and communicative differences of persons with cognitive impairments.⁵⁶ That judges may refuse to meet P due to discomfort with the embodied expression of their impairment suggests the absence of P-centricity can have a profound effect, even at the level of procedure.⁵⁷ Yet, as recent empirical work has noted, several dimensions of my more abstract account of P-centricity may already be embedded in practice, where legal professionals recognise the phenomenological weight that comes with meetings to P (in order to build trust, get to know her, see her in her environment) alongside the importance of exercising reflexivity about one’s own assumptions, as well as skills of empathy, emotional sensitivity, and compassion.⁵⁸ These aspirational traits that professionals themselves identify within mental capacity law help capture a normative ethos of moral considerability and recognition respect, enabling efforts to humanise, understand, and best represent the perspective of P, within a non-ideal legal system that can be deeply dehumanising at times.⁵⁹

Thus, the phenomenology of a P-centric orientation cannot be easily condensed into concrete legal standards, partly because its demands transcend boundaries of what is the law and beyond. Particularly due to the limited scope for precedent in a legal space oriented around making person-, context-, and decision-specific judgments, the indeterminacy of mental capacity law means sole focus on the outcome of material decisions may leave us oblivious to the substantive, attitudinal work that is required to enact P-centricity in legal reality. Instances where this P-centric ethos is absent can nonetheless more readily be identified in practice, particularly in cases involving persons with lifelong incapacity and communication barriers. In the case University Hospitals Bristol NHS Foundation Trust v ED,⁶⁰ Moor J was asked to decide whether treatment escalation would be in the best interests of ED, who was a 35-year-old woman with quadriplegic cerebral palsy and severe learning difficulties; she lacked verbal communication but communicated through facial expressions. A deteriorating respiratory condition over the course of a year meant increasing dependence on a ventilator, antibiotics, and an eventual tracheostomy. The Trust sought a declaration that it would be within ED’s best interests to avoid future extensive and potentially invasive medical treatment, such as providing CPR or admitting her to ICU care, on grounds that there would be a low prospect of success and that, even if successful, would lead to a worse quality of life. ED’s mother opposed the declaration, contending that ‘it should be ED’s decision as to whether or not to give up fighting or to carry on the battle’ and she was ‘not doing that at the moment. She is fighting’ and that ‘ED’s life is worth living’.⁶¹

Moor J ultimately made the declarations, stating that ‘[i]n somebody with ED’s conditions, I consider [CPR and other resuscitation measures] quite intolerable and burdensome’.⁶² Counsel representing ED submitted that matters in relation to s.4(6) were not addressed – particularly the (lack of) evidence around the question as to whether ED was the kind of person who would be willing to undergo invasive treatment despite the low prospect of success. Moor J ‘entirely accept[ed]’ that he did not deal with s.4(6), taking the view that

ED would recognise that the treatment she is getting on the Respiratory Ward is excellent treatment and that for her to have to go through the additional invasive treatments of the ICU and CPR would not be in her best interests because it would be futile in the long term and it would be likely to cause her pain and suffering and not achieve any advantage. […] I take the view that this makes this case entirely different from other cases referred to by counsel and that this is something that ED would undoubtedly take into account pursuant to section 4(6).⁶³

Framing the issue in this case as between the values of autonomy vs. welfare would merely skim the surface as to why Moor J’s decision to dismiss s.4(6) is so troubling. Through a phenomenological approach to P-centricity we can identify with greater precision what the dismissal of ED’s perspective amounts to – that Moor J implicitly relies on the capacity threshold as a criterial boundary to determine those who warrant moral consideration, with ED effectively falling outside this boundary. The overriding presumption seemed to be that ED’s longstanding incapacity and communication barriers rendered it unnecessary to consider her unique standpoint in the best interests decision. This was particularly evident in the judge’s narrow focus on the medical evidence and his dismissal of her mother’s account of taking ED to literary festivals and other activities, based on the presumption that ED lacked any understanding.⁶⁴

A P-centric ethos based on moral considerability and recognition respect would, by contrast, challenge the rationale that lifelong incapacity or the absence of verbal communication means ED cannot or does not value the fullness of her life as she experiences it. It is here that I find the dismissal of ED’s attendance to literary festivals and such so disturbing, because lying behind it is the assumption that, because ED does not share experiences in the same way as most, her experiences must lack meaning and value for her. This ultimately attests to a failure in both phenomenological stance and ethical orientation. As my discussion has shown, where the presumption of a shared world is challenged – and ED’s non-verbal nature and lifelong impairment might be such an example – radical empathy demands that the presumption must be suspended in order to make space for fundamentally divergent ways of experiencing and the possibilities that they represent. Indeed, because of her non-verbal nature, there is the distinct possibility that her unique way of experiencing the world affects others (such as her mother), altering shared meanings in profound ways as a result. Recognition respect enjoins others to demonstrate attentive concern – to ‘pull back with care’ by refraining from the temptation to import intentions and project onto her various mental states, physical perceptions, or the complete absence of meaningful experience. The judgment’s reliance on the projected perspective of a hypothetically conceived, ideal capacitous person who does not exist (and never did), to the neglect of the actual incapacitated person, therefore could not be justifiable.

The judicial impulse to project values based on the putative views of a counterfactual perspective likewise occurs in A Clinical Commissioning Group v AF & Ors,⁶⁵ where Mostyn J was charged with determining whether it was in the best interests of man incapacitated from stroke to continue to receive Clinically Assisted Nutrition and Hydration (CANH). On the basis of who AF was prior to losing capacity, his daughter argued eloquently that her father would not have wished to remain on CANH, citing in her statement his longstanding and clearly expressed values, wishes, and feelings when he had capacity, drawn particularly from his experiences working in a hospital for 30 years.⁶⁶ The judgment shows the temptation to appeal to a hypothetical P-with-capacity, even in cases where there is the comparative perspective of a historical person with capacity. Although Mostyn J stated that ‘I find it virtually impossible to answer the hypothetical and counterfactual question of what AF’s beliefs and values would be if he had capacity today’,⁶⁷ his approach nonetheless relied on speculation and projections of AF’s view:

I think it unlikely that if he were granted a brief window of lucidity, he would reach the conclusion that he would be better off dead rather than to continue with the limited life that he presently enjoys. He would recognise that he is not in the grips of a terminal illness leading inevitably to an unpleasant and painful death. I do not think that were he granted that brief window of lucidity he would ask to be taken at once to Dignitas.⁶⁸

We might problematise Mostyn J’s specious references to the ‘window of lucidity’ and question whether the right decision was made. What is nonetheless notable for my purposes is the judge’s repeated caution in making the very same projections that he (ultimately) commits. Mostyn J stated that ‘it would be fallacious to seek to judge the processes of his mind by the standards of a capacitous mind’,⁶⁹ highlighting the ambiguous status of AF’s wishes expressed during his incapacitated state: ‘the workings of a grossly incapacitated mind is a largely undiscovered country. […] What is known is that he derives simple physical and emotional pleasures from his quotidian existence’.⁷⁰ These statements, in fact, are truer to my account of a P-centric ethos: his reluctance to rely on the projections of a hypothetical AF might be an example of the type of ‘pulling back with care’ that ultimately cautions against imputations of intentions and projected wishes onto P.

The practical reality nonetheless is that a decision ultimately must be made – whether it be about capacity or best interests on behalf of P – and it is incumbent on the judicial role to make such decisions. In this context, we might question how this more phenomenologically-informed approach impacts the resolution of cases, specifically whether it is possible to achieve the phenomenological stance I have described above and still make certain decisions that depart from the subjective preferences in favour of a more ‘objective’ or holistic evaluation.⁷¹ Ultimately, the matter of resolution will necessarily be indeterminate because moral considerability and recognition respect refer to the substantive process and phenomenological orientation that is entailed when one seeks to engage and understand P’s standpoint in a non-trivial way. With this caveat in mind, my analysis would suggest that it is certainly possible to undertake this non-trivial engagement and still come to an opposing conclusion to P’s expressed subjective preferences. For example, in Re GTI [2020],⁷² Williams J had to determine whether it was within the best interests of a man to be inserted with a percutaneous endoscopic gastrostomy (PEG) tube against his wishes. GTI had a history of schizoaffective disorder and had stabbed himself in the neck, which resulted in him being unable to eat or drink orally without significant risks of aspiration. Williams J stated:

I’m also particularly conscious of the insult to GTI’s personal autonomy of imposing a medical procedure on him against his wishes. Although I am satisfied that he lacks capacity to make the decision it is he who has to live with it not I. I take seriously what he said to Mr Edwards, not only the fact of the PEG being intrusive, but more importantly, that the state overriding his wishes and imposing a medical procedure on him would be experienced by him as a gross insult to his personal autonomy and dictatorial. How would I feel were that to be done to me I ask rhetorically. Of course, it is almost impossible to provide an answer given that the situation GTI finds himself in is beyond my ability to truly understand. If I were to suggest that I might feel angry and violated I doubt that it does justice to GTI’s position. However there is another side to this from GTI’s perspective I think. I do note though that GTI said his mother means the world to him. I also see that he speaks positively about his life prior to his injury. He enjoyed socialising and would like to expand his circle of friends. He aspired to meeting a partner. He emerges as an intelligent and articulate man who has much to live for. I do not believe that he wishes to continue on a slow decline towards malnutrition, starvation and death. I do not believe he would dream of putting his mother through that appalling process. I believe he would wish to resume as good a life as was possible given the cards life has dealt him. That appears to have been his attitude before and the evidence of those who have been involved with him for some years appears to support the likelihood of him adapting and making the best of his situation again. Thus, whilst I accept that in approving the carrying out of this procedure I am overriding his wishes, I believe that in the short, medium and long term it is the best course for him and I hope that at some point in the future he might (even if only to himself) see that was so.⁷³

Williams J took the requirement to engage with GTI’s wishes, feelings, and values as central to his decision, ultimately agreeing to the procedure, not because of the medical evidence, but because he engaged with GTI’s standpoint – his ‘worldmodel’ – in a holistic sense, recognising that his expressed wishes were misaligned with his longstanding values and his sense of a good life. The candour, too, of his limited ability to understand GTI’s objection to the PEG tube is also notable. As Re GT1 shows, it may be the case that a judge or decision-maker approaches P with this orientation of moral considerability and recognition respect – acknowledging their distinctive experiences through radical empathy, stepping back with care and avoiding specious projections onto P’s perspective – and still makes a decision contrary to P’s expressed wishes. Indeed, it may come with the honest admission that radical empathy has got them only so far and that they still struggle to understand.

This means that P-centricity cannot guarantee or be reducible to certain outcomes, even as the decision may appear dualistic on the face of it: a life-or-death medical treatment case, for example, can often look like a stark question between patient autonomy or imposing medical treatment. Whether the deeper rationale for that outcome is P-centric in the sense I have described may nonetheless be open to question: in either outcome favouring life or death, autonomy or welfare, a P-centric ethos can be absent. Moral considerability and recognition respect necessarily come prior to a more concrete determination of the obligations that are deemed appropriate or what is practically necessary – it does not predetermine the answer of how one’s duties are to be discharged to another nor what outcome must follow. Nor is it to say that the requirements of P-centricity as I have described above are exhaustive of all the ethical and legal considerations that make their way into best interests decision-making.

But it is to suggest that the cultivation of an enriched ethical stance that remains attuned and open to persons with potentially radically divergent ways of experiencing and knowing the world is a necessary and constitutive part of the toolbox for deciding well. That a person might be unable to communicate clearly or have experienced lifelong incapacity ought to induce humility on the part of best interests decision-makers – the very fact of not being able to clearly elicit and know what P wishes means those charged with making a best interests decision have an even greater responsibility to resist the impulse to make assumptions about P’s subjective state. If epistemic humility is an appropriate response to encountering P’s radically different mode of experience, part of overcoming one’s inevitable ignorance involves every effort to discover, grasp, and interpretively engage with that difference in order to get a sense of P’s ‘alternative worldmodel’. The flip side of ‘pulling back with care’ is a deeper, more enriched grounding for the positive duty to be open to alternative experiences in the consideration of P’s wishes, feelings, and values, making it an essential rather than optional part of best interests decision-making – even if the decision ultimately goes against P’s expressed wishes. In the Court of Appeal decision, Re AB (Termination of Pregnancy) [2019],⁷⁴ the first instance judge was criticised on grounds that she had failed to take sufficient account of P’s wishes and feeling regardless of her lifelong incapacity. Articulating clearly how best interests decision-making demands a phenomenological approach to P-centricity, the judgment states:

The requirement is for the court to consider both wishes and feelings. The judge placed emphasis on the fact that AB’s wishes were not clear and were not clearly expressed. She was entitled to do that but the fact remains that AB’s feelings were, as for any person, learning disabled or not, uniquely her own and are not open to the same critique based upon cognitive or expressive ability. AB’s feelings were important and should have been factored into the balancing exercise alongside consideration of her wishes.⁷⁵

We have seen in the analysis above how easy it is for best interests decision-makers to either treat P’s preferences superficially, or dismiss altogether the ethical imperative that lies behind s.4(6) – perhaps because it is presumed that the duty to consider P’s own standpoint is equivalent to acceding to and implementing P’s subjective preferences, or that it is limited to discovering its superficial content. This crude autonomy inflection likewise suffuses influential interpretations of the CRPD as well. But this subjectivist lens to P-centricity in mental capacity regimes and human rights law more generally is precisely what is being challenged in this paper. It is much more thoroughgoing and, in many respects, more demanding, requiring attunement to alternative ways of being in the world.⁷⁶ Ultimately, protection of the rights of the individual is not necessarily achieved by elevating one important factor at the expense of others. It is the more implicit framing – the ethical stance and evaluative orientation that one adopts – rather than the mechanics of deciding and the actual outcome, that help provide much needed depth and substance to what it means to enact P-centricity in the context of mental capacity law.

Though not the main topic of my discussion, the practical implications lie not just on the side of incapacity. Those not found to lack capacity typically fall out of the discussion – with an operating presumption of capacity, autonomy has won out and that is all there is to be said. If we are to take seriously the positive obligations that are owed to individuals under mental capacity law, a person-centric ethos likewise applies on the side of capacity. I am not suggesting that an ethic of moral considerability and recognition respect involves imposing decisions on capacitous persons, but it does challenge the simplistic equivalency often made between P-centricity and acceding to subjective wishes. Commitment to this equivalency can imply leaving individuals ‘to it’; it can mean the difference between a person’s access to various paid-for services or not, as institutions dispose of their obligations to potentially vulnerable individuals with capacity.⁷⁷ ‘Unintended consequences’ to this misguided equivalency have left vulnerable adults to harmful situations, sometimes death, as a result of individuals’ disengagement from services and insufficient scrutiny of those decisions on the basis of the statutory presumption of capacity by professionals on the ground.⁷⁸

By implication, the Court’s use of its inherent jurisdiction to intervene in certain instances of harm involving vulnerable individuals who are not found to lack capacity can be warranted through the lens of moral considerability. Notwithstanding the real issues associated with the so-called ‘vulnerability’ jurisdiction⁷⁹ various analyses of the use of inherent jurisdiction have highlighted its unique orientation towards the protection and promotion of a person’s exercise of autonomy, unlike its more negative liberty connotations that are often associated with a finding of capacity under the MCA.⁸⁰ Again, the temptation would be to reduce the ethical commitments involved in the exercise of inherent jurisdiction to that of the value of autonomy. However, a phenomenological approach to P-centricity functions as both an ethical anchor and constraint that must orient the instantiation of such values. P-centric decisions that enable persons to realise and exercise their own agency, free of malignant or coercive influences, likewise involves ‘pulling back with care’, avoiding the temptation to make assumptions about individuals’ interior life and experience, perhaps respecting spaces of ambivalence, and engaging in some depth with the person’s alternative ways of experiencing and perceiving the world, even if the ultimate outcome might be one which intervenes in a consented-to but fundamentally harmful, neglectful circumstances.⁸¹

Conclusion

P-centricity demands a phenomenological stance and ethical orientation that is receptive to profound experiential difference. Through the lens of moral considerability and recognition respect it cannot be a supplementary obligation to consider a person’s wishes, feelings, and values in the context of lifelong incapacity. Phenomenological attunement to the person’s alternative should inspire radical empathy and humility which precludes making projections about how the individual experiences as the nature of their constitutive content. We must avoid this singular preoccupation with content or the easier focus on subjective preferences, wishes, and feelings, at the expense of the necessary attunement to ways in which the very structure of experience can differ. Without space and openness to such profound differences, it becomes easy to interpret P-centricity through the overly reductive lens of autonomy. It is beside the point and, indeed, impossible to look to a sole value as somehow able to bear the weight of the inherent complexity and messiness of its human subject matter, so as to adequately resolve and orient deliberations in this sphere. As the core ethos of mental capacity law, P-centricity must reflect this complexity and be responsive to the fair amount of uncertainty and divergent interpretation about which values are meant to have presumptive weight in mental capacity law. Once grounded in this ethos it is capable of providing a common ethical orientation in the treatment of persons, whether or not they have been found to lack capacity, and whether or not their subjective wishes are acceded to.⁸²