Mental Competence or Best Interests?

The anthropological approach to mental competence is very interesting. I shall reason that the issue of mental competence and the determination best interests in the decision making process has been integrated together in this anthropological approach. I use the relatively recent Mental Capacity Act 2005 (MCA) for England and Wales (Department of Constitutional Affairs 2005) to illustrate this line of reasoning. I have deliberately chosen the phrase decision-making capacity (DMC) in this commentary to separate it from the concept of determination of best interests. I am writing from the perspective of an old-age psychiatrist who frequently has to assess DMC and make decisions on behalf of those who lack DMC.

In England and Wales, like The Netherlands and other countries, the issue of DMC in psychiatric and other patients has become an important topical issue with the amendment of the Mental Health Act, introduction of the MCA and introduction of the Deprivation of Liberty Safeguards into the MCA through the Mental Health Act 2007 (Department of Health 2007). The MCA provides a framework for decision making on behalf of individuals considered to lack DMC in their best interests. The Deprivation of Liberty Safeguards provide a framework for detaining patients who lack the capacity to consent to their admission into hospital or care homes and do not dissent, although it has no powers of treatment.

Under the MCA and Deprivation of Liberty Safeguards, clinicians and others are required to be able to assess an individual’s DMC for a specific decision. At a practical level, a framework is required by clinicians to be able to achieve this at the coal face. One of the statutory principles of the MCA is that DMC should be presumed unless there is a reason to believe that it may be impaired. Moreover, the MCA provides formal criteria for the assessment of DMC that clinicians are required to use. This practical guidance is very important because clinicians can use this in a pragmatic way on a day-to-day basis.

The assessment of capacity to make a decision requires a two-stage process under the MCA. This two-stage process is as follows:

1. 1. Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works?

2. 2. If so, does the impairment or disturbance mean that the person is unable to make a decision in question at the time it needs to made?

The specific test of capacity is four-fold. A person is judged to lack capacity to make a decision if s/he is unable to:

1. 1. Understand the information relevant to the decision;

2. 2. Retain the information;

3. 3. Use or weigh that information as part of the process of making the decision; or

4. 4. Communicate his/her decision (whether by talking, using sign language, or any other means).

The person is considered to lack DMC to make a particular decision if any one of the four criteria is present.

The MCA also provides a framework for decision-making on behalf of individuals who are found to lack DMC, in their best interests. The MCA stipulates that “An act done, or decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests” (Department of Constitutional Affairs 2005, 66). This applies to any decision maker. The MCA provides a detailed list of factors that must be considered in the determination of the best interests of an individual lacking DMC, including:

• • Determination of best interests cannot be based on an individual’s age, appearance (including racial appearance or religious dress), condition, or behavior.

• • Careful consideration should be given to all circumstances pertaining to the individual lacking DMC.

• • Every effort should be made to enable an individual lacking DMC to take part in making the decision including use of appropriate methods of communication (including professional interpreters) and using other people to facilitate the person to participate in the decision-making process.

• • Consideration should be given to the possibility that...