Mental Capacity and the Right to Make Stupid Decisions

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?

Advertisements

5 thoughts on “Mental Capacity and the Right to Make Stupid Decisions

  1. Pingback: Amanda Keeling – Mental Capacity and the Right to Make Stupid Decisions | IMH Blog (Nottingham)

  2. I totally agree that people must be allowed to act in a way that they please without being constrained by somebody else’s views of what is in their best interests. It has wider ramifications of course when it becomes a matter of whether the Crown Prosecution then prosecutes for certain acts that might not be “norms of society” or offend people. I made an FOI Request to the Crown Prosecution Service via whatdotheyknow website as follows:

    19 March 2012

    Dear Crown Prosecution Service,

    Do you charge and prosecute people for their chosen lifestyle,
    culture, thoughts and beliefs?

    Do you prosecute for…

    a] not wearing socks/tights/stockings

    b] not wearing shoes

    c] not wearing underwear eg bra, pants, vest

    e] .going naked in the street – ie are nudists always prosecuted?

    .going naked in a hospital ward – ie are nudists always prosecuted?
    Or are there extenuating circumstances if the person is suffering
    from the side-effects of post-operative cognitive dysfunction which
    alters a person’s ability to concentrate and act appropriately?

    .going naked in a “private” hospital room off the main ward? ie are
    nudists always prosecuted?

    .lying naked under a bedsheet in a hospital bed where the
    temperature is unbearably hot? ie are nudists always prosecuted? Or
    are there extenuating circumstances if the person is suffering from
    the side-effects of post-operative cognitive dysfunction which
    alters a person’s ability to concentrate and act appropriately?

    .exposing breasts in a hospital gown in a hospital bed – where the
    temperature is unbearably hot – in a “private” side room? ie are
    exhibitionists always prosecuted? Or are there extenuating
    circumstances if the person is suffering from the side-effects of
    post-operative cognitive dysfunction which alters a person’s
    ability to concentrate and act appropriately?

    .exposing genitals when catheterised in a hospital bed where the
    catheter is causing great irritation?

    f] wearing a burqa; a burqini; a veil; a hoodie;

    g] wearing a bikini; swimming trunks; shortsl slippers

    h] wearing a loose fitting dress that may from a distance look like
    a nightdress but is not

    i] wearing slippers in the street

    j] talking aloud to oneself when other people can hear

    k] telepathic communications with far-distant friends and relatives

    l] post-operative cognitive dysfunction which leads to
    disinhibition and loosening of association and tangential thought
    and confabulation which can give the appearance of schizophreniform
    illness but which is not schizophreniform at all

    m] removing a traction pin from their own broken leg; removing the
    ends of a traction pin from their own traction contraption;
    removing traction from their own broken leg

    n] being misunderstood, uncomfortable, ill and distressed by being
    totally immobilised with a broken leg and reliant for everything
    including washing, washing one’s hair and assistance with
    toiletting on other people

    o] being harassed by NHS staff, social services and police
    constantly questioning why you broke your leg and why you did not
    come into hospital immediately but chose to stay in a car for a
    couple of days when originally you had been told you had likely
    sprained your ankle by hospital staff

    p]
    .for being a free thinker;
    .for being eccentric;
    .for being tangential;
    .for being incoherent;
    .for being misunderstood;
    .for being different;
    .for being nonconformist in one’s actions;
    .for holding nonconformist beliefs and value systems;
    .for being unique – one of a kind – not part of the Establishment;
    .being overweight;
    .being underweight;
    .being constipated;
    .being ill with uncontrollable defecation in a hospital bed;

    In the light of changing mores and cultural values and paradigm
    shifts, I no longer know what is the order of the day. In the 20th
    Century I would have considered that most of these would be
    laughable – fancy prosecuting any of these – except going naked,
    but now that people are regularly seen naked on television and the
    Saatchi installation of hundreds of nude people being shown on the
    News, and that pictures of naked people adorn even newspapers
    rather than “top shelf” magazines, then have the goalposts changed
    position?

    Yet there are laws about dress code are there not? In France they
    have attempted to make it illegal to wear certain Muslim dress. Is
    it permissible to wear a Niqab or Burqa in a British school or in
    the street or at a customs post?

    Where does the CPS draw the line?

    Thank you very much for your help,

    Yours sincerely,

    Rosemary Cantwell

    Campaigner for legal reform, liberty, truth and justice
    Link to this
    20 March 2012

    Dear Crown Prosecution Service, Mr Clarke Lord Chancellor,
    Secretary of State for Justice,
    Mrs May Home Secretary, Ministry of Justice,
    Mr Grieve, QC, Attorney General,
    Mr Starmer, QC, Director of Public Prosecutions,
    Mr Cameron Prime Minister of Great Britain and Northern Ireland,
    HMCTS,Mr Turner MP for the Isle of Wight,

    Yesterday, 19 March 2012, I wrote asking “Do you charge and
    prosecute people for their chosen lifestyle, culture, thoughts and
    beliefs?”

    One of the questions I asked was about wearing the NIQAB.

    Today, in the Daily Mail, 20 March 2012, page 10, is a news article
    by Rebecca Camber, Crime Reporter whose headline is “Muslim is
    taken off jury after refusing ot remove veil”.

    Massoud Shadjareh, chairman of the Islamic Human Rights Commission
    is quoted as stating: “This is totally unacceptable. I really can’t
    understand why facial expressions could have any impact on the
    judge, the judgement or anyone else in a trial. It has no
    relevance. I’m speechless that you can exclude someone on the basis
    on the way that they dress. It’s very worrying that a judge is
    being prejudiced against women wearing a veil.”

    I wish to have the full details of the 2007 policy of the Judicial
    Studies Board’s equal treatment advisory committee regarding dress
    code in court. It is mentioned in the Daily Mail that it was
    declared that Muslim women could wear the veil/niqab so long as it
    did not interfere with the administration of justice.

    The Daily Mail’s reporter refers to these guidelines, but I wish to know what is the LAW rather than just policy or guidelines.

    The article refers to someone as having been accused of listening
    to a hidden stereo under her headscarf, in 2007, but cleared of
    contempt of court when the Attorney General’s office ruled that the
    evidence was insufficent.

    In view of the old sumptuary laws of England and the religious sensibilities current in the world at the moment, is it not possible for some latitude in dress codes for all religions and for non-believers alike both in courtrooms and in the street and in hospitals and in the home?

    I was not aware of the Daily Mail’s article that was published AFTER my FOI Request, but its publication today shows how important my FOI Request is, for it pertains to HUMAN RIGHTS.

    Thank you very much for your help.

    I look forward to hearing from you presently.

    Yours sincerely,

    Rosemary Cantwell

    Campaigner for legal reform, liberty, truth and justice

    Dear Crown Prosecution Service,

    Following on from my FOI Request above of 19 March 2012, I wrote today, 20 March 2012, referring to the Daily Mail report about the veil and a muslim juror.

    I have looked on the Islamic Human Rights Commission and have found these specific links:

    http://www.ihrc.org.uk/news/ihrc-in-medi

    http://www.ihrc.org.uk/multimedia/video/

    http://www.ihrc.org.uk/publications/repo

    Do the CPS, the Attorney General. the Solicitor General, the Lord Chancellor, Secretary of State for Justice and the Home Secretary and HMCTS and Ministry of Jusitce all believe that people
    irrespective of class, gender, sex, religion, disability, have an ABSOLUTE MORAL AND HUMAN RIGHT TO SELF-EXPRESSION and that they may
    dress as they like without fear of prosecution? Hence my FOI
    Request about freewill and human rights.

    I look forward to hearing from you,

    Yours sincerely,

    Rosemary Cantwell

    Campaigner for legal reform, liberty, truth and justice for all

  3. Dear Rosemary,

    I appreciate your concerns about the vagueness in the CPS’ remit, though feel unqualified to answer or comment in any great detail as criminal law is not really my field. However, I do think that as a society we are rarely accepting of ‘strange’ behaviour that is outside the norm, and this is particularly true when the individual’s mental capacity to make decisions is questioned. Certainly, what the research seems to suggest is that when people make decisions outside the norm, this is when their capacity is questioned. We need to begin to think of ways to better communicate with people who seem to make strange choices, and to work out how to communicate the harms they may cause – and to accept that perhaps people should be allowed to engage in harmful behaviour (such as smoking) just as those who have capacity do.

  4. Dear Amanda, I have been very concerned about what constitutes “mental capacity” and “mental illness” and “mental health” and “mental hygiene”.

    Going through the history of the treatment of mental illness over the centuries it appears to me that any person who does not fit a societal “norm” becomes a “fool” and pilloried – literally.

    The Royal College of Psychiatrists have publicised their own views too:

    Mental disorders – Royal College of Psychiatrists
    11 Sep 2003 …

    http://www.rcpsych.ac.uk/campaigns/changingminds/whatisstigma.aspx

    Time for candid debate about the difficulties of … – Psychiatric …

    http://pb.rcpsych.org/content/24/8/314.1

    And someone else has placed a website as follows;

    Campaign against The Mental Health Act.

    http://www.gavaghancommunications.com/campaignsindevelopment.html

    As mental health can and does overlap with crime and criminal activity, the CPS also is included in the equation:

    Mentally disordered offenders: Legal Guidance: The Crown …

    http://www.cps.gov.uk/legal/l_to_o/mentally_disordered_offenders/

    And the Citizens Commission on Human Rights has this url:

    Parliamentarian Information | CCHR

    http://www.cchr.org.uk/legislator

    I personally am very concerned about the Mental Capacity Act 2005 and the criminalisation of ordinary people doing ordinary things or simply stupid things.

    It is like saying that people are being wise after the event and then someone blaming them for not having 20-20 hindsight and prosecuting forensically for not doing something that the prosecutor feels should have been done.

    Potentially 6 million people could be caught by this act and I believe that it is morally obsequious.

    There is no single legal definition of what is “vulnerable adult” and there have been several interpretations but if the police, the cps, the government, parliament and the psychiatrists are not in agreement, not to mention the social workers, physiotherapists, occupational therapists and other healthcare professionals, I predict that we are entering into a state of absolute Chaos.

    And that makes very bad law indeed.

  5. 18 February 2014

    Dear Amanda,

    I am writing to ask you what you have written or said to the House of Lords Select Committee on Mental Capacity Act 2005.

    I have been following closely the witnesses giving evidence and note that there is a series of parliamentary televised committee meetings held in 2013, as well as a collation of evidence in two volumes of pdf evidence.

    I myself am shown as a contributor, mainly asking specific questions as to HOW mental capacity is determined as the Law Commission raised concerns in 2013 on Halsbury Exchanges and that led me to the House of Lords Select Committee on Mental Capacity Act 2005.

    http://www.parliament.uk/business/lords/media-centre/house-of-lords-media-notices/2013/october-2013/mental-capacity-act-revolution/

    http://cdn.basw.co.uk/upload/basw_100754-8.pdf

    I hope this helps to generate informed debate, and the full documentation can be found at Parliament of course.

    With best wishes

    Rosemary Cantwell

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s