International Journal of Mental Health and Capacity Law

The Emotional Landscape of Money Management and Cognitive Decline: A Therapeutic Jurisprudence Perspective

2025-05-29T08:43:52+00:00

The ability to manage one's finances is fundamental to independent living, personal autonomy, and overall well-being, particularly for older adults. However, cognitive decline poses a significant threat to this capacity, with profound emotional and psychosocial ramifications for older adults, their families, and the professionals who support them. While legal frameworks like the Mental Capacity Act 2005 (MCA) in England and Wales aim to address these challenges, this article argues that a therapeutic jurisprudence (TJ) perspective offers a crucial lens for understanding and improving outcomes. Drawing upon existing literature in gerontology, neuropsychology, law, and therapeutic jurisprudence, this article considers the complex interplay between cognitive decline, the legal concept of mental capacity in financial decision-making, and emotional well-being. It critiques the potential limitations of purely cognitive or legalistic approaches and advocates for the integration of TJ principles – focusing on psychological well-being, recognising the proactive role of legal actors, and adopting a systemic perspective – to create more humane, effective, and empowering support systems for older adults facing financial vulnerability due to cognitive decline.

"It's a Very Complex Thing": Discourse About Capacity in Australia's Northern Territory

2024-08-06T12:07:07+00:00

In the years following the introduction of the Convention on the Rights of Persons with Disabilities (CRPD), there has been considerable debate about the validity of ‘lack of capacity’ as a legal justification for involuntary (unconsented) psychiatric treatment. In Australia however, mental health legislation reforms completed following the CRPD have not resulted in the abandonment of substituted decision-making based on lack of capacity. Capacity considerations remain relevant.

The Northern Territory (NT) of Australia has been undertaking a prolonged review of its current mental health legislation. It is expected to soon become the last Australian jurisdiction to introduce new mental health legislation following the CRPD. This paper presents the findings of a recent study of capacity discourse, involving a review of NT caselaw and an interview with a medical practitioner. The data collected provides support for defining the concept of capacity when it is used in legislation; it suggests that when ‘capacity’ is left undefined in legislation, the test for capacity can become vague, amorphous, subjective, and focused on compliance.

The study of capacity discourse enhances the visibility of decision-making about capacity under current NT mental health law. From a methodology perspective, the study highlights how interviews with clinicians can provide rich data about how mental health law is understood and operationalised in practice.

Reforming the Fitness to Be Tried Procedure in Ireland to Comply with the Convention on the Rights of Persons with Disabilities

2025-07-06T20:15:28+00:00

Greeted with unprecedented enthusiasm from non-governmental organisations and states, the Convention on the Rights of Persons with Disabilities (CRPD) has the potential to significantly change how persons with disabilities are treated by the criminal justice system. However, the frosty reception by States Parties to the direction by UN bodies that the CRPD requires the abolition of any procedures that declare an accused unfit to be tried based on mental impairment has meant that this potential has gone unfulfilled.

In this article it is determined that the current law that finds an accused unfit to stand trial removes the voices of persons with disabilities and also deprives them of their right to equal enjoyment of legal capacity, which is protected by Article 12 of the CRPD. It is discussed that where there is an issue with a person’s mental capacity, the CRPD requires that they are provided support to express their will and preferences. Substitute decision-making is not permitted.

It is determined that it is unlikely that the CRPD required a complete abolition of fitness to be tried procedures, however, it was found that the current process used in Irish law could be made more compliant with the CRPD if greater protection was provided for an accused’s access to justice, support when necessary was provided, and the law did not subject defendants found unfit to be tried to indefinite detention.

Editorial

2026-10-01T20:50:44+00:00