capacity, competence, mental health law, and assessment
My feature article highlighted some of the concerns leading to anomalies between the Mental Capacity Act 2005 (MCA) and subsequent introduction of Deprivation of Liberty Safeguards (DOLS) into the MCA in England and Wales.
Thornton provides an elegant and detailed philosophical account of various aspects of the assessment of decision-making capacity. One cannot argue against his line of reasoning. The problem clinicians have is to implement legislation that dictates the definition of decision-making capacity. In day-to-day clinical work, it is not possible to use philosophical arguments in the determination of decision-making capacity because legislation requires it to be conducted in a very specific manner. Thus, there is yet another tension (to add to Thornton’s several tensions) between perfectly reasonable philosophical constructs and the actual legislation that clinicians are required to implement.
Almost all of what is described by Banner is accurate. There is little in her commentary that is incompatible with my original paper. Banner argues that much of what is in the DOLS legislation is covered by other existing laws. However, she misses an important point. The issue of depriving someone of their liberty needs to be compliant with the European Charter on Human Rights, and this was the judgement of the European Court in the Bournewood case. Thus, legislation covering deprivation of liberty had to be compliant with the European Charter on Human Rights, and DOLS were the government’s response to this. The government could have taken a different approach and ensured that existing legislation, which, according to Banner, already covered areas that DOLS covers, were made compliant with the European Charter on Human Rights. However, this approach was not adopted and we are left with DOLS.
Lucas (2011, 118) states that, “if the Code of Practice were to require that we only assess capacity in cases in which the individual concerned has already been shown to lack capacity then we would be confronted by a double-bind: we cannot assess someone until we have shown that they lack capacity, and we cannot show that they lack capacity until we have assessed them.” He goes on to say that “Such a double-bind would be a serious shortcoming in the guidance, and it is implausible to suppose that it might have been overlooked by the authors of the code” (Lucas 2011, 118). He misses the point that the first statutory principle of the MCA states that decision-making capacity is presumed and should only be assessed if there [End Page 133] is reason to believe that to may be impaired. The MCA goes on to describe potential situations when decision-making capacity should be assessed and Lucas has described those conditions. Thus, it is not a double-bind. By routinely assessing decision-making capacity for admission into a hospital or a care home, there is a clear breach of the first statutory principle of the MCA. Moreover, this subjects an individual to an unnecessary assessment. Moreover, Lucas makes no reference to the individual’s right to liberty under article 5 (1) of the European Charter on Human Rights. This would clearly be breached by unnecessary intrusion in assessing capacity by ignoring the first statutory principle of the MCA.
Lucas (2011, 122) further reports that “A retreat from the rather demanding occasionalism of the MCA and associated guidance, in the direction of administratively more convenient procedures that effectively regard capacity as an enduring status, would be an instance of what Lorraine Code terms the objectification of patients (Code 1995, 83–4).” Capacity is not viewed as an enduring status in DOLS. Legislation pertaining to DOLS makes it very clear that the best interest assessor should decide on the duration for which deprivation of liberty should be authorized and no more than 1 year. One factor that will contribute to the decision on the duration for the authorization of deprivation of liberty is the likelihood of change in capacity over time (there are several other factors that would also be considered). For example, a patient with delirium may require DOLS when ill, but such a...