Book Review: The Spaces of Mental Capacity Law: Moving Beyond Binaries
| Published date | 01 October 2024 |
| DOI | http://doi.org/10.1177/09646639241235372 |
| Author | AMBER PUGH |
| Date | 01 October 2024 |
| Subject Matter | Special Issue: The Rule(s) of Law under HindutvaEdited by M. Sudhir Selvaraj, University of Bradford, UK and Raphael Susewind, London School of Economics, UKBook Reviews |
Book Reviews
BEVERLEY CLOUGH, The Spaces of Mental Capacity Law: Moving Beyond Binaries. Oxon:
Routledge, 2021, pp. 208, ISBN 9781032115771, £130.00 (hbk).
In recent years, the courts in England and Wales have cautioned capacity and best interest
assessors to be wary of ‘conceptual silos’that artificially position intimately linked deci-
sions as being distinct,
1
and which see the different parties involved in capacity assess-
ments working in isolation from one another.
2
These comments lend support to a more
relational and contextualised approach to assessing capacity, albeit one that must still
occur within the strictures of the Mental Capacity Act 2005 (MCA). In The Spaces of
Mental Capacity Law: Moving Beyond Binaries, Beverley Clough similarly recognises
the importance of a more relational, embedded and embodied approach to mental cap-
acity. More significantly, however, she seeks to move past the ‘conceptual silo’that
she argues that mental capacity scholarship has, to date, been constrained by. There
has been increasing interest in adopting more critical approaches to mental capacity
law, with academics, including Clough herself, challenging the liberal and individualistic
underpinnings of the MCA. However, Clough contends that even those who have
attempted to adopt a more emancipatory approach to capacity often inadvertently fall
back into dichotomous ways of thinking, thereby perpetuating liberal ideals and reinfor-
cing the capacity/incapacity binary. As Clough puts it, the general approach has been to
do capacity ‘better’(p. 55), and the concept of mental capacity is positioned as being an
inevitable fixture in the legal landscape.
The Spaces of Mental Capacity Law seeks to disrupt traditional thinking about mental
capacity law by interrogating the binaries that underpin it and the historical contingencies
that have shaped the development of the current legal framework. Some of the ideas con-
tained in the book will be familiar to readers of Clough’s earlier work, which have
become staple reads for those working in the field of mental capacity. However, this
book should not be mistaken for a simple consolidation of her oeuvre to date. While
Clough retains the relational focus that has characterised her previous work, she also con-
structs an original theoretical framework to analyse the MCA in a way that moves beyond
the limitations of critiques founded on vulnerability theory and relational theories. It is
through this lens that Clough seeks to expose ‘the constructed nature of the boundaries
drawn (and importantly how they have been constructed), their productive effects, and
the ways in which they can begin to be unravelled’(p. 6) in order to ‘rethink when,
how, and where ‘interventions’ought to take place, and their form’(p. 190).
Book Reviews
Social & Legal Studies
2024, Vol. 33(5) 825–835
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09646639241235372
journals.sagepub.com/home/sls
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