Is Mental Capacity Law Law?

Abstract Abstract—How do you stop hard cases from making bad law? One way is to strip their determination of any distinctly legal reasoning, and deny that they make law at all. This article suggests that is the approach found in the Mental Capacity Act 2005 (MCA). With a focus on best interests determinations within mental capacity adjudication, the following argument challenges the sense (or otherwise) in conceiving of such adjudication as a legal exercise. I argue that MCA cases do not involve the courts in either a law-applying or even a law-making role. Rather, they represent the issuing of a decision that is eminently non-legal in nature, and more reflective of the exercise of an executive or administrative function. This raises questions about the quality and defensibility of mental capacity jurisprudence itself, but also about the meaning of law and the role of the judicial branch.