Last month, a research team across the Universities of Bristol and Bradford and the Mental Health Foundation released their report into best interests decision-making under the Mental Capacity Act 2005 (MCA). The MCA allows for (among other things) decisions to be made for an individual when that person is found to lack the capacity to make the decision for herself. If the individual is found to lack capacity, then a decision can be made on her behalf in her ‘best interests’. The research team looked at a great deal of aspects around this decision-making process, but I was particularly interested in their findings regarding the first step: determining capacity.
The lack of mental capacity is the cornerstone of the Act; it is the ‘gateway’ step, and without a finding of a lack of capacity, health and social care professionals are not able to intervene. And yet, given that it has such an important role in the legislation – and a potentially intrusive one in an individual’s life – ‘capacity’ and how to assess it is a surprisingly mercurial concept. The MCA provides that capacity should be tested through four factors, whether the individual is able to:
– understand information
– retain it
– use and weigh it,
– and communicate their decision.
This test is primarily one of cognitive function; the quality of the decision reached by the individual should not be of issue, but rather the process by which they get there. In section 1 of the Act, which outlines the principles underlying the legislation, it is quite clearly declared that ‘a person is not to be treated as unable to make a decision merely because he makes an unwise decision’.
On paper, this sounds relatively simple – essentially, try not to be too judgmental about people’s decisions, and observe instead their cognitive functioning ability. What the report reveals, however, is making the distinction between an unwise decision, and one which results from a lack of capacity, is difficult for health and social care practitioners, and what seems to be happening in many cases is those individuals who have specific disabilities or histories are being assumed to lack capacity, when they make what appears to be an unwise decision. Another result of this research has been the discovery of what the team call a ‘concertina effect’, where capacity decisions are being made simultaneously with decisions about what action is in the individual’s best interests. They suggest that often, a decision has already been made about what course of action should be taken, and therefore a finding of a lack of capacity had to be found in order to implement it.
These two findings put together put a rather worrying light on practice around mental capacity issues. The MCA was supposed to institute a functional test of cognitive ability, rather than a status test whereby an individual with a specific diagnosis is presumed to lack capacity by virtue of that diagnosis, or an ‘outcome’ test, where those decisions which are ‘unwise’ are deemed to be incapacitous; the thrust of this is that we should not question someone’s capacity merely on the basis they have an intellectual or cognitive disability, and are making what we perceive to be a silly decision. What the findings of the study suggest is that the ‘status’ and ‘outcome’ approaches seem to be alive and well in practitioners practice, and that there is no space for the making of unwise decisions when you have an intellectual or cognitive disability.
All of this should be more concerning when we consider the massive leap which Article 12 of the UN Convention on the Rights of People with Disabilities (CRPD) presents in our thinking about mental capacity. Article 12 declares that everyone has the right to enjoyment of legal capacity, and that the State must provide adequate supports to enable that capacity to be exercised. The MCA itself is a relatively progressive piece of legislation and should be praised, but it has to be questioned what good it is if, regardless of the letter, even the spirit of the law does not appear to be followed in many cases. If such attitudes still persist, almost five years since the MCA came into force, then what hope does the rather more dramatic ‘paradigm shift’ of the CRPD have for changing fundamentally the way we treat people with different levels of intellectual and cognitive functioning?