For all (Hu)mankind? The intersection of mental capacity, informed consent and contract law with U.K. space law
| Published date | 01 September 2023 |
| DOI | http://doi.org/10.1177/13582291231173609 |
| Author | Alexander Ian Simmonds |
| Date | 01 September 2023 |
| Subject Matter | Articles |
Article
International Journal of
Discrimination and the Law
2023, Vol. 23(3) 240–264
© The Author(s) 2023
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DOI: 10.1177/13582291231173609
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For all (Hu)mankind? The
intersection of mental capacity,
informed consent and contract
law with U.K. space law
Alexander Ian Simmonds
Abstract
The UK Space Industry Act 2018 has now been supplemented with the new Space
Industry Regulations. While examples of Space Tourism grace our screens and newsfeeds
on an increasingly regular basis such as William Shatner’s recent voyage (Luscombe, 2021)
the UK Regulations also pave the way for ‘human occupants’(UK Space Industry
Regulations, Regulation 2) to experience such a flight (UK Space Agency, 2020). A key
part of the regulations pertaining to human occupants is that they must provide ‘informed
consent’before embarking on such a flight. If, as is likely to be the case, future courts are
to draw analogies with the current state of medical law in this area, spaceflight operators
will have to tread carefully if they are to avoid vitiating any informed consent by
‘bombarding’any willing human occupant with technical detail prior to their flight
(Simmonds, 2020). Whilst this could prove legally problematic for ‘capacitous’individuals
within the meaning of the Mental Capacity Act 2005, it is likely to be even more so for
those who could be deemed, in some aspects of their cognitive ability, to lack capacity. UK
Space Legislation as it presently stands faces three problems: 1) There is pre sently no legal
mechanism under UK Space Law to determine capacity. 2) As examples from the Court
of Protection indicate, ‘capacity’is a very nuanced legal concept and individuals who, on
the fact of things, may appear to lack capacity as regards potentially risky activities, have
been regarded by the Courts as, at least, partially capacitous in respect of certain de-
cisions. Operators may find themselves having to tread a fine line to avoid claims of
discrimination. 3) because of point 1) and the state of the Law of Contract as regards
contractual relationships entered into by potentially incapacitous individuals, further
significant legal problems may present themselves. This paper will focus primarily on the
University of Dundee, Dundee, UK
Corresponding author:
Alexander Ian Simmonds, Law, University of Dundee, Park Place, Dundee DD14HN, UK.
Email: asimmonds001@dundee.ac.uk
Law in England and Wales but some of the overarching conclusions will be of relevanc e to
all UK jurisdictions.
Keywords
Space, Space Law, Contract Law, Mental Capacity, Informed Consent, Space Industry,
Disability
Introduction
On the 29
th
of July 2021, the Space Industry Regulations 2021 came into force. Of nearly
300 regulations, 15 are given over to the area of ‘informed consent’under Part 12 while
Chapter 5 of Part 7 deals with provisions as to ‘medical fitness’. The purpose of the
regulations was to build upon the framework of The Space Industry Act 2018 and,
although there are still some questions to be asked of the Regulations themselves, this is
done comprehensibly.
Under draft Regulation 198, information about the operator’s spaceflight activities
were to be given to the ‘human occupant’at least ’12 h, but not more than 1 month’before
the ‘human occupant’signs the consent form. It was successfully argued by the author
during the consultation period that this would not be a sufficient amount of time for a
‘human occupant’to fully consider and understand the information therein and, thus,
consent may not be valid due to what the Court may consider a ‘bombardment’of
information under the present domestic medical provisions on informed consent. Thi s
advice was heeded, and the new regulations now require a 24 h period (Regulation 209).
Having a special interest in this part of the Act, the author seeks to find whether or not
there would be any particular legal challenges regarding informed consent being given by
an individual who lacks ‘mental capacity’in certain regards under the legislation of the
three countries so covered by the Act (England, Scotland, Northern Ireland). As will be
shown, the determination of capacity is a nuanced one, with individuals regarded as
lacking capacity in some aspects being deemed capacitous as regards others. Coupled
with the ability to make ‘unwise decisions’(Mental Capacity Act s2 (1)- as some would
definitely consider a space-flight to be-the position may be difficult to square with existing
legislation.
The international legal matrix
The present international legal regime governing the human uses of outer space has its
roots in UN General Assembly Resolution 1348 of 1958 on the ‘Question of the Peaceful
Use of Outer space’. Set against the backdrop of the early space race, and recognising,
inter alia, ‘the common interest of mankind in outer space’Article one established the ad
hoc ‘Committee on the Peaceful Uses of Outer Space’consisting of representatives of less
than 20 member states whose initial brief was to report back to the General Assembly on a
range of matters, including ‘the nature of legal problems which may arise in the carrying
Simmonds 241
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