What's wrong with capacity? Capacity as the test of compulsion

Background The current trend in mental health law is to advocate an increased importance on the capacity of the persons with psychiatric disabilities, sometimes to the exclusion of other criteria of compulsion [1]. Strong arguments can be made for the academic coherence of this approach: unlike other standards of compulsion, it takes into account the move toward non-discrimination in its approach to people with psychiatric disabilities. Whatever the intellectual strength of these arguments, they may prove problematic in practice. Compulsion is relevant when patient and doctor disagree, and the existing studies of capacity determination do not tend to focus on this situation. Anecdotal evidence from users of psychiatric services suggests that in such situations, incapacity is closely tied to refusal of treatment. This paper examines capacity determination in the context of the refusing user, to determine how judges approach capacity in this context.