For all (Hu)mankind? The intersection of mental capacity,informed consent and contract law with U.K. space law

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 presently 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 decisions. 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 Law in England and Wales but some of the overarching conclusions will be of relevance to all UK jurisdictions.

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. This 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 out of programmes to explore outer space’ (Article 1(d)). This was followed by Resolution 1472 - International co-operation in the Peaceful uses of Outer Space in December 1959 which spawned the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, ultimately culminating in the 1967 Outer Space Treaty. Sometimes referred to as ‘the Magna Carta of Space’ (Lyall F and Larsen P 2017, 48), this was an attempt to multilaterally guide the peaceful development of Space Law. Then came the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (known as the “Rescue Agreement”), obliging state-parties to render emergency assistance to astronauts -as ‘envoys of mankind’- where possible should such an eventuality arise and also imposed obligations for the recovery and return of ‘space objects’ where such objects had gone awry. (The 1972 Convention on International Liability for Damage Caused by Space Objects) followed in a similar vein, establishing that: “A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight.“ (Article 2). Shortly afterwards, the 1975 (Convention on Registration of Objects Launched into Outer Space) dictated the establishments of national registries for all objects launched or procured for space launch. The final Treaty to date came in 1979 as the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, a cosmic underachiever with only 11 signatories to date. (United Nations, Treaty Series, vol. 1363, 3) There are also a plethora of other principles adopted by the UN General Assembly.

In what once was a very niche area, the law of both space-faring and potential space-faring nations is now beginning to eclipse the now relatively obscure international legal regime (see Cocco M and Correia Mendonca H, 2020). As a side note, the author contends that some form of international consensus need soon arise to promote uniformity for certain key issues that are likely to emerge, including those at the heart of this article.

The domestic law

Prior to the creation of the Space Industry Act 2018, the only domestic statute was The Outer Space Act 1986 which was largely created to give effect to the UK’s obligations under international law (U.K Space Agency 2013) which manifests itself chiefly under S4 and 7. S5 (on Terms of License) was brought within the Space Industry Act 2018 under Schedule 1. The 2018 Act also inserted s.3za and s.3a into the Outer Space Act 1986 regarding licenses.

The Space Industry Act 2018 comprehensively outshines the Outer Space Act 1986, containing 72 sections and 12 schedules as opposed to the latter’s 15. This is reflective of its altogether much more comprehensive treatment of the uses of space, laying down basic frameworks for, inter alia, the regulation of spaceflight (Sections 1–4), (Sections 5–7), licenses (Sections 8–15), safety and security (Sections 19–25) and, as concerns this article, individuals taking part in spaceflight activities (Sections 17–18).

This Act recently gave birth to the Space Industry Regulations 2021 under s68 (6). Vastly expanding on what was laid down under the 2018 Act (there are 3 chapters on licenses alone and 12 regulations on the powers of inspectors) it is beyond the scope of this article to comment on these proposed instruments in their entirety. Instead it will focus on the specific provisions relating to ‘Informed Consent’ (Part 11), ‘Medical Fitness’ (Part 7, Chapter 5) and ‘Disability’ (Regulation 75).

The space industry regulations; informed consent and disability

Under the Space Industry Act 2018, Informed Consent was dealt with briefly under s17. Essentially, the rules are that an individual should not be permitted by an operator to take part in spaceflight activities unless the individual has a) signified their consent to the risks and b) fulfil ‘prescribed criteria with respect to age and mental capacity’. Signifying consent is mandated by way of the individual signing a consent form, and the new regulations expand upon the parameters of this process (The Space Industry Regulations, 2021; Part 12).

Under Regulation 205 (1): ‘the criterion prescribed relating to age is that a human occupant must be at least 18 years of age’. Regulation 205 (2) (a) makes provision with respect to mental capacity regarding launches from England and Wales:

(a) ‘if the launch vehicle is to be launched from England or Wales, a human occupant must have capacity within the meaning of the Mental Capacity Act 2005(a) to understand the risks involved in the operator’s spaceflight activities and the meaning of signifying their consent to take part in those activities’

Under the Mental Capacity Act 2005 the principles are laid down under s1:

(2) A person must be assumed to have capacity unless it is established that he lacks capacity.

(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Section 3 deals with the inability to make decisions:

(2) ‘A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of—

(a) deciding one way or another, or

(b) failing to make the decision.’

Regulations 205 (1) (b) and (c) make similar provisions in respect of Scotland and Northern Ireland respectively, stipulating that individuals must be judged to have sufficient mental capacity under the law of the respective countries. In Scotland the law derives from the Adults with Incapacity (Scotland) Act 2000 where s1 (6) lays down the key provisions which are broadly similar to those in England although it is an interesting sidenote that the definition of an ‘adult’ in Scotland is 16 yet a ‘human occupant’ must have attained the age of at least 18 under the Regulations. The Northern Irish rules are likewise phrased in these terms and also provides that ‘The person is not to be treated as unable to make a decision for himself or herself about the matter unless all practicable help and support to enable the person to make a decision about the matter have been given without success’. Similar to the English regime under ss (5) ‘The person is not to be treated as unable to make a decision for himself or herself about the matter merely because the person makes an unwise decision.’ Under s4.— the meaning of “unable to make a decision” is expanded upon:

“(1) For the purposes of this Part a person is “unable to make a decision” for himself or herself about a matter if the person—(a) is not able to understand the information relevant to the decision; (b) is not able to retain that information for the time required to make the decision; (c) is not able to appreciate the relevance of that information and to use and weigh that information as part of the process of making the decision; or (d) is not able to communicate his or her decision (whether by talking, using sign language or any other means); and references to enabling or helping a person to make a decision about a matter are to be read accordingly.”

With the exception of age, the provisions across the three jurisdictions are broadly similar, and, on the face of things, appear to give effect to the right to make decisions on one’s own behalf. Regarding Mental Capacity, however, the relevant Space legislation is un-specific in certain important regards, and it is this, along with it’s potential to impact the concerned jurisdictions, that this article will

Chapter 5 of the Space Industry Regulations makes provision for the certification of Medical Fitness. Under Regulation 72 (2) (a): ‘medical examinations and medical assessments’ are to be carried out by an ‘approved aeromedical examiner’ which, under ss5, ‘means an individual who— (a) is qualified and holds a valid licence to practise medicine from the General Medical Council, (b) has qualifications in aviation or space medicine, and (c) has been approved by the CAA for the purposes of carrying out medical assessments or medical examinations for the purposes of these Regulations’ and, further, that ‘“medical assessment” means the conclusion on the medical fitness of an individual based on evaluation of that individual’s medical history, medical examinations and medical tests.

Under Regulation 73. (2) “An approved aeromedical examiner may only issue a medical certificate under paragraph (1), or confirm that a spaceflight participant is medically fit to fly, if— (a) the examiner has carried out a medical examination of the applicant and an assessment of that individual’s medical history”

Regulation 75 expressly legislates for disability:

“If a spaceflight participant with a disability or reduced mobility has been certified as being fit to fly under regulation 73(1), the spaceflight operator may make arrangements for that participant to take part in a spaceflight if— (a) doing so would not compromise the safety of the flight; (b) the presence of an individual with that disability or reduced mobility would not impede or obstruct any member of the crew or spaceflight participant in carrying out their functions during the course of the flight, including executing emergency procedures or leaving the launch vehicle.”

The definition of ‘disability’ within section 6 of the Equality Act 2010 is that:

(1) ‘A person (P) has a disability if—

(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.’

What is absent from the legislative regime on Space Flight, is an answer to the vexed question of mental capacity and fitness to fly, or, expressed positively, the question of how mental capacity is to be determined and at what stage in the contractual relationship. Moreover, does ‘fit to fly’ necessarily mean ‘fit to give informed consent’? As will be discussed later in this work, the determination of this question and the means by which it is sought could have serious consequences in this context.

Under Regulation 61 (3) (a), the Training Manager is responsible for “ensuring that the licensee complies with the requirements in these Regulations in relation to the qualification, training and medical fitness of individuals performing specified roles and spaceflight participants” (Regulation 61 (3) (g)) along with “administering any informed consent process required by Part 12” but it does not seem that they are responsible for ensuring that a human occupant has mental capacity. Moreover, it is not apparent as to whether this process will be differentiated for individuals who may lack capacity. This is not necessarily a drawback at this stage, but, as will be seen, consideration as to the finer details of this process must be given to strike an appropriate balance between the rights of an individual to make their own decision and the need to protect potentially vulnerable individuals.

The International Civil Aviation Organisation (2012) Manual of Civil Aviation Medicine states, in respect of licensing for pilots of all levels, that:

“The applicant shall have no established medical history or clinical diagnosis of: a) an organic mental disorder; b) a mental or behavioural disorder due to use of psychoactive substances; this includes dependence syndrome induced by alcohol or other psychoactive substances; c) schizophrenia or a schizotypal or delusional disorder; d) a mood (affective) disorder; e) a neurotic, stress-related or somatoform disorder; f) a behavioural syndrome associated with physiological disturbances or physical factors; g) a disorder of adult personality or behaviour, particularly if manifested by repeated overt acts; h) mental retardation (sic); i) a disorder of psychological development; j) a behavioural or emotional disorder, with onset in childhood or adolescence; or k) a mental disorder not otherwise specified; such as might render the applicant unable to safely exercise the privileges of the licence applied for or held “(Annex 1, Requirements of Mental Fitness, Chapter 9.1.3)”.

Meanwhile, Regulation 163 of The Air Navigation Order (2016) states that disqualifying medical conditions in respect of licenses can include “(a) any alcohol or drug abuse, addiction or misuse; (b) any neurological condition; (c) any functional disability; (d) any surgery or medical treatment; (e) any collapse, fainting or loss of consciousness

These sources present a broad church of disorders and problems which could apply to a number of the individuals involved in the cases discussed later. With the list of factors outlined there could be a risk of an operator adopting a status-based or functional approach when determining whether or not an individual can give consent. As will be shown later in this work, this may not be the best course of action. Moreover, an aeromedical examiner would not necessarily be qualified to determine capacity in any case. At paragraph 3.2. Of Annex IV to Regulation (EU) 2018/1139 on common rules in the field of Civil Aviation, it is stated that

“An aero-medical examiner must: (a) be qualified and licensed in the practice of medicine; (b) have received training in aviation medicine and regular refresher training in aviation medicine to ensure that assessment standards are maintained up to date; and (c) have acquired practical knowledge and experience with regard to the conditions in which pilots carry out their duties.”

In the set of very specific and narrowly defined circumstances envisaged by this paper, aeromedical examiners should legally be obliged to find out whether or not the individual is cognisant of the inherent risks in spaceflight activity. They should be further obliged-in the course of assessing for mental disability-to find out whether the individual is capable of understanding the information given to them as part of the consent process. Moreover, to avoid potential contractual liability, some form of assessment of capacity should take place at as early a juncture as possible and, moreover, as regards the decision-making process itself, a sufficient amount of time and assistance must be rendered to all potential Space Flight Participants regardless of status in any event.

Unlike medical certificates issued to pilots and flight crew which, under the ICAO rules, would check for mental retardation (sic- Expression used in the document itself), being classed as ‘medically fit to fly’ would logically be assessed by a lower standard. One problem is that, by the time the potential human occupant meets the aeromedical examiner, a binding contract may surely have already been concluded which could lead to further difficulty as will be discussed later.

If the aeromedical examiner at this stage makes a finding that the individual cannot make an informed decision owing to mental disability or a lack of capacity this may be open to challenge under the Mental Capacity Act as an overly paternalistic gesture, particularly if a refund from the Operator is not forthcoming. Principle one of the Mental Capacity Act is that there should be respect for an individual’s autonomy as regards decision-making whilst Principle three embodies anti-paternalist sentiments (Mackenzie C and Rogers W, 2013, 37). The spirit of the act was enunciated vividly in the Court of Protection very recently by Hayden, J, who called the presumption of capacity one of the ‘cardinal principles’ of the Act (London Borough of Tower Hamlets v PB, 2020 (by his litigation friend, the official solicitor) at para. 6) and that, in his opinion,

‘it is every bit as important as the presumption of innocence in a criminal trial.’

Could the fact that an individual is actually considering boarding an experimental aircraft for a trip beyond the earth’s atmosphere be evidence of a lack of capacity in any regard? In England and Wales, under s1 (4) of the Mental Capacity Act it is stated that ‘A person is not to be treated as unable to make a decision merely because he makes an unwise decision.’ Hayden, J’s opinion was that:

‘Even where an individual fails to give appropriate weight to features of a decision that professionals might consider to be determinative, this will not in itself justify a conclusion that P lacks capacity. Smoking, for example, is demonstrably injurious to health and potentially a risk to life. Objectively, these facts would logically indicate that nobody should smoke. Nonetheless, many still do. (At para. 14)

A mentally disabled individual’s freedom to exercise such a choice would almost certainly be upheld in the absence of contrary evidence suggesting that capacity was not an issue: Macfarlane LJ in the Court of Appeal had the following to say:

“there is a space between an unwise decision and one which an individual does not have the mental capacity to take… it is important to respect that space, and to ensure that it is preserved, for it is within that space that an individual’s autonomy operates.” (PC v City of York, 2013, at para 54.)

The whole purpose of the consent regime is to ensure that the potential space flight participant is fully aware of the risks they are taking, and to make sure that they embark upon their voyage with as much knowledge thereof as is reasonably possible. Ergo, it may be surmised, that should an individual be suffering from a mental disability of sorts, they may not necessarily have understood the inherent risks in any case.

Jurisprudence from the court of protection

In considering the ways in which challenges to aeromedical examiners decisions may play out under the regulations, it is instructive to observe how the courts have looked at capacitous decisions.

An individual will not be regarded as incapacitous merely by dent of a diagnosed, serious medical condition. For example, in the case of FX V A Local Authority, 2017, the individual in question was afflicted with Prader-Willi Syndrome and had been assessed as having a “full-scale IQ of 57” (At para 5) yet this did not automatically mean that this individual lacked capacity. Furthermore, in the case of Liverpool City Council v CMW (By her litigation friend, the Official Solicitor) the individual concerned was diagnosed as “having ADHD, foetal alcohol spectrum disorder as well as specific difficulties with cognition and speech and language. Her expressive language is quite good but her receptive and processing skills are only those of a child aged seven to 9. She does not have a learning disability; it is Dr Rippon’s view that her IQ would be in the 80 s and thus properly described as low average but well above that which would justify the diagnosis of a learning disability.” (At para 10). The judge held that she could both consent to sexual relations and that, likewise, she had sufficient capacity to access and use the internet and social media (At para 23) in spite of the inherent risks.

Relevant to the question of truly informed consent is how the Court of Protection has interpreted the test on ‘information relevant to the decision’ under s3 (1) of the Mental Capacity Act. In the case of re A (An Adult), Cobb J articulated that, regarding social media usage of individuals who could be presumed to lack capacity, the “relevant information” needing to be understood, retained and weighed in the words of the Act, would be that, amongst other things:

“(i) Information and images (including videos) which you share on the internet or through social media could be shared more widely, including with people you don’t know, without you knowing or being able to stop it…(iii) If you place material or images (including videos) on social media sites which are rude or offensive, or share those images, other people might be upset or offended…(iv) Some people you meet or communicate with (“talk to”) online, who you don’t otherwise know, may not be who they say they are…(v) Some people you meet or communicate with (“talk to”) on the internet or through social media, who you don’t otherwise know, may pose a risk to you…(vi) If you look at or share extremely rude or offensive images, messages or videos online you may get into trouble with the police” (At para 28)

It is likely that a Court would take a similar line in determining the form that such information regarding a space flight should take. The complexity of risk involved in human spaceflight is arguably much more complex than that which arises from using the internet and whether this information could be condensed into six paragraphs is another matter entirely. As will be explored later, regardless of the form the information takes, an Operator must be sure that they can offer such information in a clear and comprehensive way to all, regardless of Mental Capacity issues.

Some cases in the Court of Protection bear stronger-if still very tentative-analogies with space flight. In (Greenwich RLBC v EOA) concerning, inter alia, the question of whether the individual concerned could ‘make decisions as to foreign travel’ (At para 8), it was decided, on behalf of the individual concerned, that they lacked capacity to tend to such matters (At para 49). However, in the case of Cardiff County Council v Peggy Elizabeth Ross (by her litigation friend the Official Solicitor), an 82 year old woman suffering from dementia was held to be able to give informed consent to going on a cruise holiday, in spite of a psychiatrists report which stated the contrary (At para 8). A similar decision could potentially be made regarding an aeromedical examiners report.

In the context of space flight, the words of Mr Justice Munby in the 2007 case of Local Authority X v MM are pertinent:

“A great judge once said, “all life is an experiment,” adding that “every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge” (see Holmes J in Abrams v United States (1919) 250 US 616 at pages 624, 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with…The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good — in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?” (At para 20)

Indeed, if space is to be regarded as the common heritage of all humankind- and it clearly is - a careful line is to be treaded to avoid potential discrimination which could arise under s29 of the Equality Act 2010 on the provision of goods and services as will be discussed later in this work.

Given that no precedent as of yet exists for the scenarios envisaged here let us suppose, then, that an applicant with a mental disability is assessed as medically fit to fly. At this point we must consider the ramifications for the consent process. Should the person give consent and then tragically perish, it is possible that a legal challenge could be mounted on the basis that the individual was not able to give valid consent on the grounds of mental incapacity or that enough steps were not taken to fully allow the individual to give genuine consent. Section 3(2) of the Mental Capacity Act provides that pertinent information relevant to the decision should be ‘given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means)’. This is likely to complicate what is already an intricate balancing act as regards the obtaining of informed consent as has been previously outlined. As will be shown from the International perspective, any such communication must share a parity with other individual comparators and, in any case, differences in communicating such risks must be done in a way which is proportionate and reasonable in the circumstances. After all, what use is informed consent if such consent is not valid? Given the amount of money likely to be involved in such transactions, it should be required that, for a fee-paying human occupant, valid capacity assessment is a condition precedent for entering into a contract for services involving them being personally launched into space. Should this change to the law not be made, further difficulties could arise as will be shown.

The international picture

Domestic law aside, the international picture relating to disability discrimination must also be addressed. The main international legal instrument in this area is the (Convention on the Rights of Persons with Disabilities from 2008) (CRPD). Of the eight Guiding Principles under Article 3, principles one and three are particularly relevant here, principle one being, amongst other things, ‘individual autonomy including the freedom to make one’s own choices’ and principle three being ‘full and effective participation and inclusion in society’. As stated by De Bhalis and Flynn (2017) ‘The CRPD has been identified as a catalyst for change, marking the paradigm shift from viewing persons with disabilities as objects of charity and medical treatment to identifying them as subjects with legal rights’

An individual should, then, as a matter of international law, be entitled to make their own choice regarding a risky venture and also not be prohibited from enjoying the best opportunities and experiences that society has to offer, which perfectly encapsulates the prospect of space tourism. Indeed, Article 30 (5) states that states parties to the convention ‘shall take appropriate measures … to ensure that persons with disabilities have access to services from those involved in the organization of recreational, tourism, leisure and sporting activities.’. Moreover, under Article 4 the Convention obligates state parties to ‘take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities’ suggesting that any such barriers that may be present in existing Space legislation could be removed.

Of further particular interest here is Article 12 on equal recognition before the law and, in particular, Article 12 (2) which states that ‘States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’ and, further, Article 12 (3) whereby ‘States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity’.

On one reading then, the Convention may be of assistance in respect of the Mental Capacity requirements of Space Flight under the UK instruments, however, as De Bhalis and Flynn (2017) have pointed out: “It is important to distinguish the concept of “legal capacity’ from “mental capacity’. Legal capacity is a concept contained within the broad heading of equal recognition before the law. It has been defined as the right to be recognised as a person before the law and therefore to have one’s decisions legally recognised…In contrast, mental capacity is used to refer to a combination of cognitive ability, impairment and a person’s extent of understanding of the consequences of their actions.” (pp 9-10). Mental Capacity and Legal Capacity, therefore, are not inherently the same thing.

This was also considered in the United Nations General Comment on Article 12 (UN General Comment) which held that “Legal capacity and mental capacity are distinct concepts. Legal capacity is the ability to hold rights and duties …Mental capacity refers to the decision-making skills of a person, which naturally vary from one person to another and may be different for a given person depending on many factors, including environmental and social factors.”

The approach taken under the legislation in the United Kingdom regarding decision in individuals with issues of mental capacity in decision making is a ‘functional’ one, whereby as described by the Law Commission, “the assessor asks whether an individual is able, at the time when a particular decision has to be made, to understand its nature and effects” (Law Commission Consultation Paper on Capacity p33). This is apparent throughout the legislation as previously outlined whereby assistance should be rendered to assist the individual in coming to a decision based on all the available information at the time (Martin). However, it has been stated by the United Nations Committee on the Rights of Persons with Disabilities that that ‘any test amounts to indirect discrimination when it disproportionately affects people with cognitive disabilities’ (De Bhalis and Flynn, p10).

At paragraph 21 in the General Comment, it was stated that ‘In order to fully recognize “universal legal capacity”… States must abolish denials of legal capacity that are discriminatory on the basis of disability in purpose or effect.’

And further that:

‘functional tests of mental capacity or outcome-based approaches that lead to denial of legal capacity violate article 12 if they are discriminatory or if they disproportionately affect the right of persons with disabilities to equality before the law.’

On one hand there could be a significant argument to suggest that the existing legislative regime in the UK regarding Space could be discriminatory in one sense should a person be denied the opportunity to make what could amount to an ‘unwise’ decision. On the other hand, however, there is an obligation to protect people in such situations, both from unscrupulous marketing and sales practices and – in some instances – as regards general flight safety parameters as previously outlined. In this respect, existing legislation and future practice in this field amongst operators could fall to be assessed with reference to Article 2 of the Convention on definitions.

As with principles within the law of obligations generally (see Latimer v AEC, 1953 and Watts v Hertfordshire County Council), there is no requirement under the Convention that the right to legal capacity (or personhood) in this context be regarded by States Parties as absolute to the detriment of all other considerations. It is stated in Article 2 that

“Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”

Therefore, as previously outlined, as regards the design of spacecraft, it may not be reasonable to expect that accommodations be made for disabled individuals or those lacking mental capacity to the exclusion of passenger safety considerations. However, the legislation regarding informed consent is in a difficult conundrum in respect of individuals with mental capacity issues as has previously been highlighted. Whilst the thrust of the CRPD is such that individuals suffering from disabilities should be on an equal footing with others, the purpose of informed consent is to ensure that individuals have a true understanding of the implications and risk of any activity they are signing up for.

With certain Mental Capacity issues-particularly those which may relate to intellect-there are two ways this can be dealt with to avoid discrimination in the case of Space Flights. A straightforward functional approach could be taken whereby individuals with Mental Capacity issues could be held to a higher standard than others by way of obtaining the necessary evidence as regards their giving of consent. Whilst this may be controversial it would serve to protect potentially vulnerable individuals from potentially unscrupulous business practices. Equality is undoubtedly important, but surely this should mean genuine equality whereby protective scaffolding is afforded in relevant circumstances to avoid exploitation. However, a second – and less discriminatory approach could also be tendered whereby more assistance regarding decision making in these instances is offered to all applicants for Space Flight. This approach is perfectly aligned with the Committee’s interpretation of Article 12 within the General Comment. As Kerslake and Flynn (2016) state:

‘…if an individual is having difficulty making a decision or communicating a decision, the answer is not to deny legal capacity to the individual, it is instead to provide access to support for the exercise of legal capacity–which will vary greatly depending on the individual and the specific situation. This is a groundbreaking distinction that the GC has explicitly made and has the potential to be revolutionary in legal capacity law, leading to a system that respects the right of all individuals to decision-making support, regardless of disability or decision-making ability’(p475)

As regards the obtaining of informed consent in the context of Space Flight, this could involve a baseline minimum level of support offered to all individuals regardless of Mental Capacity issues with higher levels of support on offer should the individual require them. A problem here could be that an operator would have to be seen to offer higher levels of support to any individual with Mental Capacity issues or otherwise be potentially in breach of their duty of care towards them. In turn, this could be said to be discriminatory. On the other hand, it would be highly likely that such a course of action may be received by any court as being an ‘appropriate modification’ or ‘reasonable adjustment’ rather than indirect discrimination.

Potentially capturing physical alterations to a spacecraft to accommodate individuals with disabilities, Article 2 goes on to explain that:

“Universal design” means the design of products, environments, programmes and services to be useable by all people, to the greatest extent possible, without the need for adaptation or specialized design. “Universal design” shall not exclude assistive devices for particular groups of persons with disabilities where this is needed.

On such a reading, spacecraft manufacturers should already be perhaps considering such points from the design stage although there is no legislation which presently requires them to do so. In fact, as outlined later, Schedule 2 (2) of the Equality Act expressly provides that modifications to certain forms of transport are not strictly necessary under the Act. This appears consistent with the Convention.

However, alongside the CRPD there is also the European Convention on Human Rights (1953), in particular Articles 14 and 8. Article 14 is a general prohibition on discrimination within which disability is read and Article eight is the right to respect for private and family life. There have been a number of decisions on this basis, in this context notably Botta v Italy (1996) where the applicant was discriminated against due to the absence of facilities enabling him to go into the sea, and Zehnalová and Zehnal (2002) v Czech Republic on access to public buildings. It should be noted that not every action brought in respect of Articles 14 and 8 has been successful. In Senteges (2002) v. The Netherlands it was held that the state was not obliged to provide the applicant with a robotic arm as the applicant had already the same access to medical facilities and treatments as compared with other citizens.

The European Court of Human Rights has explicitly referred to the CRPD when upholding these rights in relation to disability-related discrimination in the case of Glor v Switzerland (2009) whereby Articles 14 and eight were read in conjunction, in ruling that Article eight included psychological and physical integrity. This case concerned a disability-related tax and the Court held that there had been a difference in treatment between individuals based on disability-specifically whether or not an alternative to military service was on offer in a state where mandatory conscription exists, in this case there was not. This was held thus to be discriminatory and unlawful. Stavert (2010) has written that the European Court of Human Rights may be focusing less on ‘whether similarly placed people or situations are treated differently—thus whether the law is making distinctions (and whether this is justified)—to considering whether the effect of the law is discriminatory. This provides a more comprehensive guarantee of non-discrimination in that it encompasses not only direct discrimination but also discrimination that is indirect or covert.’

What makes things difficult for Operators is that the need to obtain valid consent could, in some cases involving individuals with issues of mental capacity, require a difference of approach. This is not to say that such a difference would be unlawful-as we have seen already there are caveats in the international picture regarding reasonable accommodation- but it perhaps means that the informed consent regime in general must be subject to more stringent legislative requirements so that the information presented is as clear as possible to all potential Space Flight Participants and that a suitable level of support is offered to all in reaching their decisions on this basis.

The contractual stage

As outlined previously, the regulations do not stipulate when or how capacity is to be ascertained. The references made to medical fitness etc. are presumably related to processes that would occur beyond at least the initial contractual stages. Is it possible that the law on contract could potentially invalidate such an agreement before the services of the aeromedical examiner have been rendered?

Under s7 of the Mental Capacity Act on ‘Payment for necessary goods and services’, it is stated that (1) If necessary goods or services are supplied to a person who lacks capacity to contract for the supply, he must pay a reasonable price for them. (2) “Necessary” means suitable to a person’s condition in life and to his actual requirements at the time when the goods or services are supplied.’ In Fehily v Atkinson, 2017 it was held by Stephen Jourdan Q.C. that ‘capacity’ in such a context refers to ‘the capacity to absorb, retain, understand, process and weigh information about the key features and effects of the contract, and the alternatives to it, if explained in broad terms and simple language’ (At para 102). In Dunhill v Burgin, 2014, Baroness Hale stated that: ‘The general approach of the common law, now confirmed in the Mental Capacity Act 2005, is that capacity is to be judged in relation to the decision or activity in question and not globally.’ (At p 452). The common law position is that such individuals are generally liable (Re Rhodes, 1890 at p94) and it has also been stated that “It is not in dispute that the definition of ‘necessary’ in section 7(1) of the MCA precisely mirrors the common law rule.” (Aster Healthcare Ltd v Shafi, 2014 (The Estate of) at 1350). However, if the contract is not for ‘necessaries’ the rule is that an individual lacking capacity will be bound by the terms of the contract unless it can be shown that they did not understand what they were getting themselves into at the time and it can be shown that the other party was aware of their incapacity (Imperial Loan Co v Stone). Decided in 1892, the position in Imperial Loan Co. v Stone has broadly stood the test of time in spite of a divergent approach taken in New Zealand (Archer v Cutler, 1980) which proposed an overall test of ‘fairness’ to determine whether or not a contract should stand between the contracting parties. However, Lady Hale in the more recent Supreme Court case of Dunhill v Burgin, proposed that ‘knowledge’ on the part of the vendor in such a contract could also mean ‘constructive knowledge’ (para 25). It is worth noting that Lady Hale’s comments have been approved by the High Court (Josife v Summertrot Holdings, 2014) indicating a shift in this general direction. The implications for operators here are serious as they will have to ensure they perform due diligence prior to entering into a contractual relationship in these circumstances. Any failure to make reasonable enquiries as to a potential SFP’s Mental Capacity, on this basis, could be deemed fatal to any contract should the SFP wish to void it. Moreover, should issues of Mental Capacity arise at the contractual stage this may have implications for issues of informed consent which, on the basis of the legislative framework as set out, arise much closer to the actual launch date (Regulation 209). The examination by the aeromedical examiner should be required by legislation at the earliest possible date post contract and, it should also be suggested, that the contract for space flight is rendered an executory one on the condition precedent that the SFP is assessed as fit to fly.

It is important to note here that the absolute requirement of knowledge on the part of the service provider in such transactions as set out in Imperial Loan Co. does not apply in Scotland (Loudon v Elder’s, 1923 CB) which could lead to disparity/imbalance under the present framework.

Another interesting legal question that arises here then, is whether or not commercial spaceflight could be considered a ‘necessary’ service? It is a question of fact in each case as to whether a contract is for a ‘necessary’ (Ryder v Wombell, 1868) and none of these cases has ever considered the question of space travel. In addition to the oft cited ’11 fancy waistcoats’ (Nash v Inman, 1908)¹, some examples of what have, in the past been considered ‘necessaries’ are a racing bycyle (Clyde Cycle Co. v Hargreaves, 1898)², the hiring of horses (Hart v Prater, 1837); the hire of a car to fetch some luggage from a station six miles away (Fawcett v Smethurst, 1914), and, perhaps most analogously, flying lessons (Hamilton v Bennett, 1930). As the case law indicates, what is and isn’t a necessary is highly fact sensitive and a person’s ‘condition in life’ may be so that a journey into space could be regarded as a ‘necessary’ given the case law examples. In respect of modern case law, this area is largely un-touched, at least as far as issues of Mental Capacity are concerned but there has been one influential case involving a minor in this area, specifically the football player, Wayne Rooney. In the High Court case of Proform Sports Management Ltd v Proactive Sports Management Ltd, the question of what constituted ‘necessaries’ arose albeit briefly, where Hodge J stated that a “diversity of meanings” had been given to that term throughout the years (Paragraph 38). “Necessaries”, then, go beyond merely what is required for day-to-day survival and it is, therefore, perfectly conceivable that space flight could fall into this category.

Direct rules on Mental Capacity aside, it is important to also consider the possible implications of The Consumer Protection from Unfair Trading Regulations (2008) on any such contractual arrangement involving an individual who may lack Mental Capacity. Under Regulation three of the 2008 Regulations, for example, it is an unfair commercial practice if requirements of professional diligence are contravened and this ‘materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product’. It is important to note that under Regulation 2 ‘product’ also means ‘service’, under which it would be assumed space flight would be classified. It is further important to note that under Regulation 2 (5) it states that:

‘In determining the effect of a commercial practice on the average consumer—

(a) Where a clearly identifiable group of consumers is particularly vulnerable to the practice or the underlying product because of their mental or physical infirmity, age or credulity in a way which the trader could reasonably be expected to foresee, and

(b) Where the practice is likely to materially distort the economic behaviour only of that group, a reference to the average consumer shall be read as referring to the average member of that group.’

Therefore, individuals lacking Mental Capacity could potentially have a cause of action under these provisions also should an operator not make the expected enquiries prior to contracting and the lack of capacity is relevant.

Discrimination

Operators may then be treading a fine-line should they decide to refuse an individual with a mental disability on the basis of capacity-it is possible that such a course of action could be regarded as discriminatory if a sharp-elbowed human-occupant could perhaps garner a second opinion. Space flight operators would come within the Equality Act 2010 as ‘Service Providers’ under s29 and under s13 (1) it is stated that ‘A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’. However, s15 could be of assistance to an operator as 15 (1) (b) offers the defence of being able to show that discriminatory treatment ‘is a proportionate means of achieving a legitimate aim.’ A close examination of draft Regulation 78 shows that this appears to have been considered:

‘78. If a spaceflight participant with a disability or reduced mobility has been certified as being fit to fly under regulation 76(1), the spaceflight operator may make arrangements for that participant to take part in a spaceflight if— (a) doing so would not compromise the safety of the flight; (b) the presence of an individual with that disability or reduced mobility would not impede or obstruct any member of the crew or spaceflight participant in carrying out their functions during the course of the flight, including executing emergency procedures or leaving the launch vehicle.’

It seems that refusing a ticket to an individual on the basis that they could endanger flight safety is legitimate but is refusing a ticket to an individual on the basis that they may not be able to understand the risks involved in the flight is discriminatory in this context. An interesting conundrum may arise should a potential human occupant dispute the aeromedical examiners findings of a lack of capacity and tender their own evidence-the draft regulations do not appear to provide for an appeals process in this respect. Could an absence of these be potentially discriminatory and/or beyond the spirit of the Mental Capacity Act?

A further interesting point is that under s20 of the Equality Act it is stipulated that there is a duty to make adjustments for disabled people (s21 makes clear that it is discriminatory not to comply with this duty). In particular, s20 (4) provides that ‘where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.’ What about the physical features of experimental aircraft? Would this duty apply in the context of making physical amendments to the body of such a vehicle? The answer appears to be no. Schedule 2 makes provisions in relation to services which involve ‘transporting people by land, air or water’ (Section 3(1)—notably not space, however, although a purposive assessment of this provision would probably lead to a finding that transporting people ‘by space’ is contained by virtue of open-textured interpretation. Furthermore, it could be argued that space travel of any kind will, by default, also involve some kind of air travel. Under Schedule 2 (2) ‘It is never reasonable for A to have to take a step which would—(a) involve the alteration or removal of a physical feature of a vehicle used in providing the service; (b) affect whether vehicles are provided; (c) affect what vehicles are provided; (d) affect what happens in the vehicle while someone is travelling in it.’

However, under s20 (5) there is a requirement that ‘where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.’. Under paragraph 7.47 of the Equality Act Code of Practice (Equality and Human Rights Commission, 2011) auxiliary aids are ‘anything which provides additional support or assistance to a disabled person’ and examples include ‘a special piece of equipment; extra staff assistance to disabled people; induction loop or infrared broadcast system; ’ and ‘audio-visual fire alarms’.

To what extent would an Operator be at risk of discriminatory behaviour were they not to allow such auxiliary aids on board owing to factors such as additional weight? Fuel costs would doubtlessly be calculated to a degree of precision although it has been stated that greater financial cost alone cannot provide a justification unless there are other good reasons for adopting such a practice (At para 5.33). Moreover, could the mere presence of an ‘auxiliary aid’ be in and of itself dangerous should it come loose in the cabin and float around in zero gravity? When would the requirement to provide such an auxiliary aid become unreasonable?

Refusal to allow such an auxiliary aid could presumably be allowed under s15 (1) (b) as a proportionate means of achieving a legitimate aim (or if deemed ‘indirect’ discrimination under s19 (2) (d)). Here it would fall to be decided by the ‘objective justification’ test. Under paragraph 5.30 of the Equality Act 2010 Statutory Code of Practice (At para 5.33) examples of legitimate aims include ‘ensuring the health and safety of those using the service provider’s service or others, provided risks are clearly specified’ and ‘ensuring the wellbeing or dignity of those using the service’.

It is also important to consider whether or not the duty to make reasonable adjustments would assist here. The duty arises in respect of the provision of services under s29 (7) and is expanded upon under Schedule 2. This was expanded upon in the case of Roads v Central Trains (2004) EWCA Civ 1541 within the judgment of Lord Justice Sedley where he spoke of the previous provisions in the Disability Discrimination Act 1995:

“The phrase “disabled persons” in section 21(2) must therefore be directing attention to features which impede persons with one or more kinds of disability: here, those whose disability makes them dependent on a wheelchair. The reason why it is expressed in this way and not by reference to the individual claimant is that section 21 sets out a duty resting on service providers. They cannot be expected to anticipate the needs of every individual who may use their service, but what they are required to think about and provide for are features which may impede persons with particular kinds of disability - impaired vision, impaired mobility and so on. Thus the practical way of applying section 21 in discrimination proceedings will usually be to focus the question and the answer on people with the same kind of disability as the claimant.” [at 11]

However, and in line with the previous discussion, a service provider would not be under the requirement to alter the nature of their services in order to avoid discrimination absolutely. This is illustrated by the case of Edwards v Flamingo Land Ltd [2013] EWCA Civ 80 whereby it was held that a restaurant would not be under an obligation to provide takeaway services in order to specifically cater for those with disabilities. As Longmore LJ set out the position:

“If it were otherwise, both a sophisticated and unsophisticated restaurant could be required pursuant to section 21 of the 1995 Act to take reasonable steps to provide a takeaway service for disabled customers. Conversely a takeaway establishment could be required to take reasonable steps to allow disabled customers to eat inside the area of the takeaway establishment but so to require would, in my view, require the service provider to provide a different service from that which he provides or is prepared to provide.” (para 12)

It is worth noting that a similar position was tested in the case of Paulley v FirstGroup Plc (2017). The Supreme Court held that it was a failure to make reasonable adjustments where a bus company did not strictly enforce the policy of requiring non-disabled passengers to give up spaces for disabled ones in contravention of their policy and, therefore, discriminatory under the Equality Act. Whether this would be the basis for a general principle regarding adjustments to all forms of transport is highly questionable given the other statutory provisions in this area as previously outlined.

There is also the question of whether the definition of ‘transport’ would apply to transport for pleasure rather than transport for the express purpose of travelling from A—B although this could be an academic issue.

The reasonable adjustments duty will be subject to an objective test as was espoused in the case of Royal Bank of Scotland Group Plc v Allen [2009] EWCA Civ 1213. This means that the Court will consider any reasons why any possible adjustments were not made. In the case of experimental aircraft it is likely that a Court would be highly sympathetic to any arguments based on safety requirements in what is likely to be a finely balanced engineering exercise. This is more likely when one considers the Statutory Code of Practice on Services and Public Functions at paragraph 7.29 (2011) where it is stated that all the circumstances of the case are to be considered, including the type of service, the nature of the service provided and it’s size and available resources, and the effect of the disability on the disabled individual. Whilst resources are unlikely to be an issue, the nature of the service provided may prove an insurmountable hurdle for those seeking physical alterations or, potentially, auxiliary aids.

The above points regarding the Equality Act notwithstanding, it must be stressed that every case of disability and/or mental incapacity will be different. Not every disabled individual will require physical adjustments to be made to the craft in question. Where there are questions of mental capacity, it is likely that reasonable adjustments will necessarily have to be made in pursuance of obtaining informed consent of the individual as is required under the regulations. As the legislation points out, the requirement for independent decision-making is of paramount importance, and there is a definite legal argument to be made as regards reasonable adjustments being made in respect of the way in which information is tendered under the regulations so that an individual with relevant issues of Mental Capacity can, indeed, give valid informed consent.

Where such issues of Mental Capacity present themselves, it is desirable that, notwithstanding the level of qualification of the aeromedical examiner to determine Mental Capacity—although it is submitted that there should be a statutory requirement any such individual should be appropriately qualified to make such determinations—the 24 h period stipulated under Regulation 209 should be amended to be 48 h, either in respect of individuals who may lack capacity or, in the interests of parity, any potential Space Flight Participant.

Conclusions

The question of informed consent in the context of commercial space travel within the UK is already a vexed one. This will be complicated further where individuals with mental disabilities are concerned with this process. If access to space for touristic purposes is, however, to be open to all humankind, an equitable approach must be adopted. As was outlined in the Law Commission’s Consultation Paper on Capacity³, there exist roughly three broad approaches to the question of capacity; “status”- under which one may be excluded from various domain’s by simple virtue of a diagnosis-in the paper outlined as being a “patient” of the Court of Protection but, in practice, could potentially extend to the status of having been diagnosed with a mental illness or disability- “outcome” whereby the outcome of the individuals decision is the overriding and important factor and – in the Law Commission’s opinion, the most favourable approach-the “functional” approach (At p 33) As described by the Law Commission, “In this approach, the assessor asks whether an individual is able, at the time when a particular decision has to be made, to understand its nature and effects”. It is submitted that aeromedical examiners should adopt a similar course of action when assessing the medical fitness of potential human occupants under Draft Regulation 78. A ‘status’ approach would potentially be much too draconian. On a related matter, the apparent absence of any established appeals procedure against the decisions of an aeromedical examiner is somewhat concerning and, it is submitted, potentially discriminatory if it does not allow individuals to get a second or third opinion on these matters.

From the examination of the available literature on the rules relating to the qualifications of aeromedical examiners although necessarily medically qualified, they would not necessarily be in a position to determine mental capacity. As was shown, there has been at least one case where a psychiatrists report stating that an individual lacked capacity was disregarded by the Court for those purposes. As written above, a ‘status’ approach taken at the pre-contractual stage would potentially be regarded as too draconian and would certainly be open to challenge under s29 of the Equality Act 2010. By the time a customer reaches the aeromedical examiners office it is likely to be very late in the day from a contractual standpoint, with both costs and expectations likely to have spiralled. For this reason—and for other reasons of potential liability arising under the 2008 Unfair Trading Regulations—it is submitted that the mode of contract should be changed in such instances to an executory rather than an executed model, insofar as no binding contract between the operator and the SFP be concluded until a valid assessment of capacity has been made by means of a condition precedent. A full and independent ‘capacity assessment’ should be legislated for to ensure that potentially vulnerable individuals are both cognisant of the decision they are making and that they have contractual capacity. Although, as has been written, the regulations state that space activities are only open to ‘individuals with capacity’ the absence of a mechanism to determine this is concerning. This may also serve to offset any concerns about the giving of valid informed consent later in the procedure. As stated previously, regarding the timeframe for informed consent—24h as things presently stand under Regulation 209—it would probably be in the interests of all potential Space Flight Participants-those with capacity and those who may have issues with capacity—that this period be doubled to 48 h, or, at the very least, that this timeframe be an option to all so as to ensure a full understanding regardless of intellect or decision making ability-which are not necessarily going to be factors relating to Mental Capacity in any case it should be observed.

The fact that the ‘informed consent’ regime was specifically legislated for and so greatly expanded upon in the new regulations shows that this provision is one which is to be taken seriously. There also needs to be some serious consideration of whether or not a ‘threshold’ level of mental capacity should be established before an individual is provided with a consent form. As has been written, individuals who, on the face of things, may be regarded by many to lack capacity, have indeed been held by the Courts to be able to consent to a range of potentially risky endeavours such as the use of social media. Although not as imminently hazardous as a rocket launch, the use of social media implies use over a sustained period, possibly the individual’s lifetime. Although inherently dangerous, a spaceflight would likely be a one-time event in an individuals life. Based on the case law examples examined, it is at least arguable that these endeavours pose equal dangers for some potentially vulnerable individuals. However, the regulatory regime must be careful not to stray into paternalism as regards decision making – the thrust of the international regime along with associated decisions across a range of Courts is such that a premium is placed on the exercise of individual freedom in order to fully participate in society regardless of capacity. This being said, provisions must be in place to avoid exploitation. All individuals must be presumed to be able to give informed consent but that informed consent must be valid and not based upon any lack of understanding. As has been written, perhaps the best way to approach this may be to raise the bar in respect of the level of information given and how this should be done for all individuals as opposed to creating a specific regime based on an absence of Mental Capacity. This being said, where there are significant doubts regarding an individuals ability to comprehend the risks or appreciate the finer data points, it would be reasonable and proportionate – and, indeed, necessary-under all the instruments examined for a different approach to be taken.

Space must surely be regarded as the common heritage of all humankind. The United Nations Convention on the Rights of Persons With Disabilities lays down as a core principle that disabled people should be entitled to ‘Full and effective participation and inclusion in society’ (Article 3 (3)). Having the opportunity to visit these aspects of our common heritage must surely be read into the ethos of this instrument, and, also, taken into consideration as regards the extremely fine balancing act of enabling all to give informed and genuine consent to such potentially hazardous activities. Embarking upon a flight into space may very well be regarded by some as a stupid and unnecessarily dangerous decision, but it must be recalled that, in the interests of preserving autonomy, the law protects our right to make a decision which could be regarded as ‘unwise’. Whilst we all have the right to make ‘unwise decisions’, it is also important that such unwise decisions are validly informed ones, regardless of our levels of mental capacity.