Musings of a phenomenologist

Science, psychiatry and random musings

Are you sure you really want to do that?

Posted by soveda on November 25, 2008

Or: Do we have the right to make bad decisions for ourselves?

Yes I’m going to start talking about the Mental Capacity Act 2005.

It’s a great piece of legislation, not really it is and here is why:

We now have enshrined in legislation the following concept:

You are assumed to have the mental capacity to make decisions unless proven otherwise.

Here are the main principles of the act:

1 The principles

(1) The following principles apply for the purposes of this Act.

(2) A person must be assumed to have capacity unless it is established that he lacks capacity.

(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

(6) 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.

So why is “capacity” still a problem?

Anecdote and experience suggests that historically capacity to make decisions was only discussed if an individual refused input/care/medical treatment that was thought to be in their best interests. Now as we see above, making an unwise decision is not a lack of understanding of that decision.

As importantly, consenting to something does not mean having an understanding of that decision.

Mental health professionals (mainly psychiatrists) have been the most common formal assessors of capacity in the past and it seems that they are still being asked to do this despite the MCA code of practice stating:

Who should assess capacity?
4.38     The person who assesses an individual’s capacity to make a decision
will usually be the person who is directly concerned with the individual
at the time the decision needs to be made. This means that different
people will be involved in assessing someone’s capacity to make
different decisions at different times.

Or in other words, it is everyone’s duty to assess someone’s capacity to make a decision when you are the person asking them to make that decision/

Is that so complicated? I don’t think so but these assessments still seem to be a black art.

Here is a link to the code of practice for the MCA 2005, if you have a read of the section relating to people who “should have regard to the act” you may find yourself in that list. Are you prepared for that eventuality?


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