Decision-Making Capacity and the Deprivation of Liberty Safeguards

Principle 2 of the 2005 Mental Capacity Act (MCA) requires that decision-making capacity should be assumed, unless there is conclusive evidence, on a balance of probabilities, to the contrary (Department of Constitutional Affairs 2005). In his article “The Paradox of the Assessment of Capacity Under the Mental Capacity Act 2005,” Ajit Shah (2011) raises the concern that the new Deprivation of Liberty Safeguards (DOLS), introduced through the Mental Health Act (Department of Health 2007), conflict with this principle (henceforth, the principle of presumed capacity) because, in practice, they will encourage the routine assessment of capacity even in the absence of any positive evidence of diminished capacity (Department of Health 2007). Is there, however, a genuine conflict between the routine assessment of capacity, and the principle of presumed capacity? In this article, I argue that there is not. On the contrary, the MCA and associated Code of Practice provide a clear warrant for keeping the decision-making capacity of members of certain patient groups constantly under review. Nevertheless, the concerns that Shah raises are not entirely misplaced, because there remains a significant mismatch between the conception of capacity that is implicit within the MCA and the sort of routine assessment that seems likely to occur under the DOLS.

Grounds for the Assessment of Capacity Under the MCA

One possible basis for concluding that there is a conflict between the routine assessment of decision-making capacity and the principle of presumed capacity is the thought that one should not be entertaining doubts about someone’s capacity unless one already has compelling evidence that they lack capacity. However, there is no necessary incompatibility between entertaining doubts about someone’s capacity and adhering to the principle of presumed capacity. The Code of Practice accompanying the MCA makes this clear. The code gives guidance on when the assessment of capacity is appropriate, noting that, “it is important to carry out an assessment when a person’s capacity is in doubt” (Department of Constitutional Affairs 2007, section 4.34). Evidently then, doubting someone’s decision-making capacity, before any formal assessment, is not regarded as breaching the principle of presumed capacity. Where significant doubts exist, assessment is required. And we need not await the results of a formal assessment to entertain, and act on, such doubts. Indeed, the principle of presumed capacity provides guidance for precisely those cases in which reasonable grounds for doubt exist. Specifically, it clarifies where the burden of proof lies in such cases. Where there are doubts, it is important to undertake an assessment. But whatever doubts we may have, we must not conclude that anyone lacks capacity until an assessment has been carried out, and has shown that they lack capacity.

Having said that, it is clear that the key phrase “when a person’s capacity is in doubt” (Department of Constitutional Affairs 2007, section 4.34) is open to a number of possible interpretations. Should it be taken to apply to all cases in which we lack positive evidence that someone has decision-making capacity? Or should it be construed more narrowly, to apply only to those cases in which positive (if not necessarily compelling) evidence of diminished capacity already exists? And, if the latter is the correct interpretation, what sort of positive evidence of diminished capacity is required? We will not know precisely when assessment is appropriate until we have answers to some of these questions.

Fortunately, section 4.35 of the Code of Practice provides further detail, listing several scenarios in which assessment might be appropriate (4.35):

• • The person’s behavior or circumstances cause doubt as to whether they have the capacity to make a decision;

• • Someone else says they are concerned about the person’s capacity; or

• • The person has been diagnosed with an impairment or disturbance that affects how their mind or brain works . . . and it has already been shown that they lack capacity to make other decisions in their life. (Department of Constitutional Affairs 2007, section 4.35)

In the context of the DOLS, the third of these scenarios might...