A fundamental aspect of the Mental Capacity Act 2005 (MCA) is the statutory endorsement of a functional approach to capacity. In principle, this requires a separate assessment of capacity in respect of each decision to be made. Most capacity assessments take place at a non-judicial level, and, outside of day-to-day decisions, the most common assessors are likely to be healthcare professionals. This paper investigates the practical operation of the capacity assessment process at both judicial and non-judicial levels. It asks whether the process can deliver on the MCA's goal of preserving maximum decision-making freedom, while, at the same time, providing an appropriate degree of protection. It argues that assessors who are not legally trained encounter signific
Early in 2011, Illinois joined the ranks of states that recognize civil unions between both same-sex and opposite-sex couples. The law gives partners in these unions “the same legal obligations, responsibilities, protections and benefits as are afforded or recognized by the law of Illinois to spouses.” Despite the fact that Illinois and most other states still reserve marriage for opposite-sex couples, the option of civil unions will make it easier for some couples to make health care decisions for one another should one of them become incapacitated. Surrogate decision-makers for health care are a significant topic for everyone, but the issue has special resonance for same-sex couples because the law in most jurisdictions excludes same-sex couples from the benefits that marriage and some civil unions confer in those health care decisions. Timothy F. Murphy, "Surrogate Health Care Decisions and Same-Sex Relationships," Hastings Center Report 41, no. 3 (2011): 24-27.