Chapter 1
Mental capacity past, present and future
An overview
Reg Morris
In this chapter
This chapter provides on overview of mental capacity, looking at:
- The nature of mental capacity and factors that can affect it
- The evolution of legal systems to address the issues it raises
- The limitations of current mental capacity legislation and some of the steps being taken to improve its scope and operation
- The relationship between mental capacity and mental health legislation
- Current levels of knowledge and engagement with mental capacity legislation by service users, carers and professionals and measures to improve uptake of what the legislation offers
- Issues surrounding the assessment of mental capacity and the need for awareness raising and training of professionals to improve the process and outcomes of assessment.
Introduction
Decision-making is an integral aspect of everyday life. We make decisions about all kinds of things such as what to wear, what to eat and whom to socialise with, quite naturally and usually (but not always!) without effort or difficulty. On the other hand, there are more important decisions such as choosing a partner, accepting a particular medical treatment or buying a house that may take more reflection and research to accomplish. Like many human capabilities, most of us take our decision-making ability, and that of those around us, for granted. This makes it all the more difficult to deal with when things go wrong as a result of stressful or traumatic life events, physical or mental illness or injury. When this happens, a person may struggle to participate in decision-making and, in some cases, may not be able to participate at all. When a person cannot make decisions independently, she is said to have impaired mental capacity. This becomes particularly important when someone is facing a decision that must be made. For example, he may be in the process of being discharged from hospital and need to decide whether to go back home or into supported accommodation. Alternatively, he may have a serious illness requiring urgent medical treatment. Crucially, impaired mental capacity prevents a person from giving “informed consent” regarding what happens to her and, therefore, restricting her right to self-determination and autonomy. Informed consent is a legal requirement before professionals can perform health or social care assessments, make interventions or take action about placement, living arrangements or financial matters. Due to this, special legislation is required to protect those who lack capacity and those who act on their behalf without informed consent. Generally, such legislation can make four kinds of provisions:
- A person can make decisions in advance (advance decisions/directives) about refusing treatments – but not about deciding which treatment he wants.
- He can appoint someone in advance to make decisions for him (powers of attorney).
- Professionals can make decisions on his behalf – often, but not in all cases, based on the principle of ‘best interests’.
- A court can appoint someone (a Deputy) to make decisions on behalf of the affected person.
Mental capacity is a significant and increasing issue in health and social care. Mental incapacity rates in older adults in long-term care settings ranged from 44% to 69% in a review of studies (Moye and Marson, 2007). In general, non-elective acute hospital inpatients rates of incapacity ranged from 37% to 40% (Etchells et al., 1999; Raymont et al., 2004). However, a lower, but still significant, rate of 26.7% was reported by Fassassi et al. (2009) in a general medical ward in Switzerland. A review of 99 studies of consent to treatment in older people found that age and lower educational standards were commonly associated with impaired ability to consent (Sugarman, McCrory and Hubal, 1998).
Factors that may affect mental capacity
Mental capacity depends on the core abilities of being able to assimilate, remember and process information and to communicate the decision. Any condition or life event that affects any of these core processes can affect capacity. Some include:
- Intellectual disabilities, often present from birth and caused by a range of factors from genes to adverse conditions or events
- Dementia, due to its impact on memory and reasoning
- Brain injury and stroke, which can affect cognition and communication
- Mental health problems, such as psychosis, depression and anxiety, as they can distort the way information is processed to arrive at decisions
- Delirium resulting from infections, drugs and intoxicants, which can temporarily affect mental capacity
- Other causes that prevent a person from thinking clearly and taking in information, such as severe traumatic events, grief or pain.
Summary: Factors that may affect mental capacity
- Health conditions or events that affect perception, thinking, memory or communication
- Cognitive abilities
- Communication ability
- Mood and emotional factors
- Support which presents information about the decision intelligibly and helps the person reach and communicate his/her decision
- The nature of the decision to be taken; more complex decisions are more demanding of the abilities underpinning mental capacity.
The history of mental capacity legislation in England and Wales
Mental capacity legislation has implications for a significant proportion of the population of all developed countries – probably over 10% if the carers of people with impaired decision-making are included. Moreover, the scope of mental capacity legislation is extremely broad, encompassing financial, health, welfare and social areas.
The social and ethical dilemmas posed by adults who lack the ability to make decisions for themselves have existed since the dawn of human groups and societies, and initially were determined by religious teachings. More recently, formal legal codes have been developed that address mental incapacity in a way that is systematic, open to scrutiny and revision and capable of being administered and enforced by the legal system.
In England and Wales, mental incapacity law dates back to the thirteenth century, when powers to deal with the estates and welfare of people who were incapable of making decisions was given to the king. Subsequently, the Chancellor’s office gained powers to appoint a person to control the estates, affairs, health and welfare of those who lacked capacity. These powers lasted until the Mental Health Act 1959 abolished the Chancellor’s powers over health and welfare. However, powers over health and welfare were subsequently reintroduced into the Mental Capacity Act 2005 (MCA) for England and Wales.
Limitations to mental capacity legislation
In 2006, the United Nations General Assembly adopted the Convention on the Rights of Persons with Disabilities, and this has since been ratified by the UK. This has the core purpose “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity”. The convention states that treatment of disabled people (including those who lack mental capacity) should:
- Respect inherent dignity, individual autonomy and independence of all people, including the freedom to make their own choices
- Be non-discriminatory
- Allow full and effective participation and inclusion in society.
The Convention emphasises that legal capacity (the ability to hold rights and duties and to exercise these rights and duties) is a universal right that applies even for those without mental capacity. Therefore, it is important that mental capacity legislation does nothing to diminish legal capacity. In this respect, substitute decision-making by a healthcare practitioner or someone with powers of attorney using the principle of ‘best interests’ can be seen as discriminatory. The United Nations Convention on the Rights of Persons with Disabilities prioritises supporting the person in making her own decision and highlights the primacy of the wishes and preferences of the person without capacity. The notion of a ‘best interests’ outcome, as judged by a substitute decision-maker, has no place in this formulation. It is true that mental capacity legislation requires that a person should be supported to participate in decision-making and that his past wishes and preferences should be considered, but the United Nations Convention views the wishes of the person as paramount, rather than a third party’s evaluation of what is in the person’s best interests. In the British Isles, the mental capacity legislation of Scotland (2000) and the Republic of Ireland (2015) do not use the idea of best interests, but instead emphasise supporting a person to participate in decision-making and determining what she would want based on her principles, values and past history. (See Chapter 4 for further discussion of this topic).
Impaired mental capacity also evokes the crucial question of when (or if) a person’s wishes should be overruled in order to protect him from harm or exploitation. For example, Section 4 of the MCA (2005) for England and Wales makes provision for the overruling of a...
