restricted access Running Before We Can Walk: Do We Have the Capacity?
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Running Before We Can Walk:
Do We Have the Capacity?

mental capacity, mental competence, mental health, decision-making

Mental competence, or ‘mental capacity’ as it is referred to in recent legislation in the UK, is a concept that is expanding rapidly as a common currency in health and social care services. Neelke Doorn’s “Anthropological Reflection on the Concept of Competence” makes for fascinating and highly relevant reading and the legal and ethical discussions she describes taking place in the Netherlands would appear to echo many of those that have occurred in the UK over the last 5 to 10 years, but with some significant differences. However, Doorn’s new conceptualization of mental competence causes some concerns, particularly if it was to be applied in services currently provided to people where their mental capacity may be an issue.

Mental Capacity in the UK

The UK has just emerged from a long and complicated process of legal reform that has resulted in new and separate pieces of legislation governing mental capacity, and the compulsory admission and treatment of people into psychiatric hospital. The two laws, the Mental Capacity Act of 2005 and the Mental Health Act of 2007 (the latter reforms the 1983 Mental Health Act) covering England and Wales, are mirrored by two similar laws (although with some significant differences) in Scotland. Northern Ireland is currently considering what legislative steps it will take to address these areas.

The fact that the UK has chosen to go down the route of having two separate pieces of legislation certainly complicates matters—mental capacity legislation uses a time- and situation-specific test of capacity that focuses on the individual’s ability to make a decision for themselves, similar to Doorn’s conceptualization of competence that currently prevails. Mental health legislation contains no test of competence, but focuses primarily on the presence of a mental disorder and the risk this poses in terms of harm to self or others.

Mental Competence: “The Ability to Design One’s Life”

Developing the conceptualization of competence or capacity beyond just a rather mechanistic decision-making ability (which does not necessarily [End Page 147] reflect reality in any case) toward “the ability to design one’s life,” as Doorn puts it, is an approach which should be supported. Doorn’s discussion of how mental competence relates to human identity and self, which in turn relates to concepts such as being “socially embedded,” “self-relatedness,” and responsibility is also very helpful. Her conclusion about the ‘value-ladenness’ of health care (and social care) practice is particularly important and is echoed in a recent research report by the Mental Health Foundation, Model Values, which builds upon earlier work by Fulford and others (Mental Health Foundation 2009). Translating these higher level concepts into ways that practitioners can engage positively and effectively with service users may prove technically challenging, but in time could pay off in terms of much more meaningful relationships and outcomes.

Mental Capacity as a Negative Freedom?

However, I have some concerns at both a theoretical and a practical level with some of Doorn’s arguments. For example, does Doorn’s suggestion that the current conceptualization of capacity as a decision-making ability need to be rooted in a concept of negative freedom? Surely, making decisions for oneself can be a positive act and a substantive expression of autonomy? The Mental Capacity Act was certainly seen by many people with mental health problems, learning disabilities, or dementia in this light—it was widely welcomed by organizations representing these groups (Making Decisions Alliance 2005) and research since the Act came into force has indicated continuing support for the legislation (Manthorpe et al. 2009).

I would suggest that this support, in particular for the five principles at the beginning of the Mental Capacity Act, is based on the view that decision making as defined by the act can very much be conceptualized as being part of an ability to design one’s life. The first three principles of the Act (Table 1) should all support an individual to be active, rather than passive, in designing their life, even if (as the third principle states) their life may...