Overcoming Challenges in the Mental Capacity Act 2005. Camillia Kong
its purpose of providing practical, reflective guidance to practitioners on various complexities within mental capacity practice, and in doing so makes a considerable contribution to the human rights of people whose lives and human rights are affected by such decisions.
Professor Anselm Eldergill
1 Berlin, Sir I, supra.
Chapter 1
The Legal Landscape and the
Challenge for Practitioners
Introduction
Consider the following:
Margo is a 68-year-old woman who is in the early stages of Alzheimer’s. She gets confused periodically, but most of the time her memory is moderately good. She lives with her adult son who refuses to let social workers see her, although they were alerted to Margo’s case after a concerned neighbour contacted the local authority. The very few times social workers have been able to see Margo, her squalid living conditions were thought to be contributing to her poor health: the house was extremely dirty with evidence of a rat infestation and she appeared to be not eating regular meals, with her weight dropping to dangerously low levels. In addition, her son exercised a worrying control over her. For instance, the fridge and pantry doors had locks attached, and Margo’s son had the only keys. When asked about this, her son explained this was a necessary measure to prevent Margo from overeating. It is clear to the social workers that Margo’s health and well-being are at risk in this situation – not only does her physical health seem to be suffering but also her Alzheimer’s seems to be getting rapidly worse. Social workers think that both of these can, at least in part, be attributed to the son’s power and influence in the house and the emotional distress that he causes her. Margo is adamant, however, that she wants to remain at home with her son. The social workers have to assess whether Margo has capacity to decide about her living and care arrangements and if not, whether it is in her best interests to move her to a care facility and prevent contact with her son.
If you were the social worker, what would you do? What initial values and considerations would inform your decision? In the past, practitioners may have intuitively felt an obligation to intervene in situations like these, regardless of the paternalistic overtones. But in recent years our concept of mental capacity has altered the presumption towards paternalistic action, with the Mental Capacity Act 2005 in England and Wales (MCA) transforming the way in which practitioners in social care, medicine and the law are legally obliged to approach the decision-making capacities of individuals with impairments. The presumption of capacity in the first instance indicates an autonomy-based rather than paternalistic approach to deciding questions about a person’s care and treatment. Within this framework, however, the appropriate course of action to take in Margo’s case is not immediately clear – if she has the capacity to decide to remain at home and in contact with her son, does this mean practitioners do nothing? Equally, if she lacks capacity, does this mean practitioners ignore her deeply held values, which might include a relationship with her son and living in her own home? This dual impulse to respect the choices of individuals while protecting and safeguarding them from harm remains a fundamental tension at the heart of many dilemmas facing practitioners.
This tension is easy to state. Ten years of experience of the MCA in action has also made clear that it is impossible to pretend that individuals exist in isolation. Rather, they are situated within complex relationships that can support and enable, as well as obstruct and disable, their ability to decide, to act and to secure their own interests.
However, to date, what is all too often lacking is a clear framework within which to resolve this tension and answer these questions. By challenging the UK to abolish ‘substituted’ decision-making in favour of supported decision-making, the Committee on the Rights of Persons of Disabilities has made the tension even more acute, but without, on a proper analysis, assisting us to resolve it.
By drawing together the insights of a philosopher and a practising barrister, we seek in this book to provide a set of ethical principles that can inform and guide both the assessment of capacity and the making of best interests decisions under the MCA. These principles, we suggest, can help answer the questions of when and how professionals can intervene in a person’s life to secure her greater autonomy, while respecting her as an individual – as a subject, not an object. In so doing, we suggest that we can start to bring home – to operationalise – the Convention on the Rights of Persons with Disabilities (CRPD) even without changes to the law.
Our key message is that we cannot properly deploy the MCA without a set of ethical skills. To that end, and in the body of the book, we aim to guide practitioners through ethical reflection in three key areas:
1. The role of relationships in mental capacity: why and how relationships matter in developing capacity and establishing supportive decision-making mechanisms; the defining features of those relationships that promote or diminish autonomy.
2. The dialogical skills which enable and empower individuals with impairments: what these dialogical skills are and how to cultivate them; the importance of critical awareness and understanding of how prejudices can impact on dialogue; how dialogue reveals aspects of capacity that may not be fully captured in the functional test and can impact on the outcome of capacity adjudication; reasons why an individual’s participation is important in both capacity and best interests assessments.
3. The role of the capacity and best interests assessor: how social care workers, clinicians and legal practitioners can impact positively or negatively on the autonomy and agency of individuals; how values inform and orientate capacity assessments; the need for transparency in capacity and best interests adjudications.
This chapter places what is to come later in the book in its context, providing an overview of the MCA, the inherent jurisdiction of the High Court, and the CRPD. We also explore the question of whether capacity is ‘in one’s head’ or whether it is – at least in part – a function of the interaction between the person and her relationships. While some case law suggests the former, we ultimately suggest that it is both possible and legitimate to interpret the MCA in the latter fashion, and that this provides a better method of responding to the complexities of cases such as Margo’s. This analysis provides the necessary framework for our discussions in the remainder of the book insofar as they relate to capacity.
Outline of the MCA, the inherent jurisdiction of the High Court, and the CRPD
The MCA was intended to establish a comprehensive statutory framework setting out how decisions should be made by and on behalf of adults whose mental capacity to make specific decisions is in doubt. It also clarifies what actions can be taken by others involved in the care or medical treatment of people lacking capacity to consent. The framework provides a hierarchy of processes, extending from informal day-to-day care and treatment, to decision-making requiring formal powers and ultimately to court decisions and judgments. The full range of processes was intended to govern the circumstances in which necessary acts of caring can be carried out, as well as the necessary decisions taken on behalf of those lacking capacity to consent to such acts or to make their own decisions.
Unusually for English legislation, the MCA is expressly based on statutory principles. Section 1 of the Act starts with three ‘screening’ principles concerning capacity: a presumption of capacity, a requirement to provide all practicable assistance before a person is treated as incapable and a declaration that a person must not be treated as incapable ‘merely because he makes an unwise decision’. As regards the basis for acting or deciding on behalf of a person lacking decision-making capacity, the MCA is predicated on two overarching principles: (1) best interests: an action done or a decision made under the act for or on behalf of a person who lacks capacity must be done, or made, in his best interests and (2) the least restrictive option: before the act is done or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
Section 2 of the MCA sets out the definition of a person who lacks capacity. Section 3 sets out the test for assessing whether a person is unable to make a decision and therefore