Thought provoking papers on capacity

I came across two fascinating papers this week that I thought I'd share, both of which have interesting implications for that slippery concept we call "mental capacity".  The first was a case report by a medical team who had 'established capacity'* in a patient with partial locked in syndrome (Carrington, S. & Birns, J. (2012) 'Establishing capacity in a patient with incomplete locked-in syndrome', Progress in Neurology and Psychiatry 16(6) p 18-20 - happily the paper is FREE!).  This is one of the first papers I've seen on the communication aspect of mental capacity.  As Tom O'Shea and I were pondering on Twitter, I wonder if this test would have come out differently if the man had been making decisions which his treating team disagreed with.  The paper is also of interest in connection with advance decisions, because whereas before his stroke the man had indicated he would not have wanted to live with partial locked-in syndrome, following his stroke he not only wanted life-sustaining treatment, but he wanted to be resuscitated in the event of cardiac failure.  A lot of the debates surrounding Tony Nicklinson's request for assisted suicide assumed that nobody would want to live in his shoes (yes Polly Toynbee, I am talking about your particularly offensive article), yet a survey conducted last year actually found that a majority of people with locked in syndrome were happy and only a minority wanted to end their lives.  The point (for me) about Nicklinson was about his autonomy to do something non-disabled people would be able to do independently.  We should approach with extreme caution the assumptions people who haven't experienced a condition first hand make about quality of life.  This, of course, has a bearing on the ongoing DNAR debates, but that's another post for another day.

Allan Norman: Sex, residence, and the capacity to make unwise decisions

I'm really delighted to host this guest blog by Allan Norman, Principal Social Worker & Solicitor at Celtic Knot (www.celticknot.org.uk), an independent law firm and social work practice. Allan's post explores how very different real life outcomes can follow a capacity assessment where a person might make an unwise decision, and asks whether we would want the law to be that way if we were the subject of a capacity assessment. Guest posts responding to this question, or on other capacity and social care topics, very much welcomed.

A capacity decision can be, as I tell my students, like a fork in the river. You have to go one way or the other. If a person has capacity, they are allowed to make unwise decisions. If a person lacks capacity, we must make decisions for them in their best interests. Which fork we take is particularly significant if they lead to completely different destinations - that is, the unwise decision that they would have made is the opposite of what we think is in their best interests.

Caselaw is developing some tools for ameliorating the worst effects of this, for example laying emphasis on how a person's previously expressed wishes may form part of their best interests. Meanwhile, I have argued, if you control the capacity question - what is the decision, the making of which has to be assessed - you have significant control over the answer. 

Mental Capacity Act and Tenancy: An open question

[This piece is cross-posted from the brilliant Nearly Legal blog, who I approached with a question about contracts and tenancies. Readers interested in capacity and housing issues might also be interested in a paper by the National Development Team for Inclusion called 'The Real Tenancy Test'. Over to Nearly Legal - answers on a postcard please...]

I have had a question from the editor of the Small Places blog, which is a very fine blog on human rights and community care, with attention to Court of Protection matters. I think it is a question which might benefit from the assembled housing law mavens who read NL from time to time.

The question concerns the position of someone lacking capacity under the Mental Capacity Act 1985 when an independent tenancy is sought. There is conflicting guidance and threatening case law to deal with.

Is Article 12 keeping you awake at night?

Because if you are at all interested in issues around mental capacity and human rights (as I tend to assume readers of this blog are), then Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) should be giving you pause for thought.  Article 12 is the right to equal recognition before the law of persons with disabilities.  It has been described as the core of the CRPD, and also as a 'paradigm shift', a 'war of ideas' and a 'clash of creeds' (see Quinn, more on this paper below)  Article 12 stands firmly within the tradition of the social model of disability – with a view of disability as a phenomenon that arises out of social barriers, prejudice and discrimination, in contrast to individualised and medicalised accounts.  On this model, what we call ‘mental incapacity’ arises through a combination of discriminatory attitudes and a lack of supports to assist people with disabilities in decision making. Both of these, being social phenomena, are remediable if we undertake work to challenge oppressive attitudes and ensure resources to support decisions are available.  In the final analysis, the strength of Article 12 may rise and fall with the strength of the social model of disability – which, despite its very important insights, is not without its limitations (see Shakespeare, 2006).  In the meantime, however, there is much to be learned from the debates around Article 12, and I hope to explore them more fully in this blog in this post and others yet to come.

Is the Mental Capacity Act 2005 too paternalistic?

The concept of mental capacity sits at the junction of two of the most powerful discourses in our society today: autonomy, and paternalism.  The Mental Capacity Act 2005 (MCA) is concerned with autonomy in two interlinked senses:

• Autonomy meant as the right to determine one's own course, free from external interference (closely linked to the concept of negative liberty and Liberalism in political philosophy);
• Autonomy meant as the capacity for self-governance of one's actions (often called 'personal autonomy' in Philosophy).

At base, the MCA serves a gatekeeping function between actions (or inaction) predicated upon discourses of autonomy or paternalism.  (Very) roughly put: if you have the capacity for autonomous (self-governing) decision making, you should enjoy the right to autonomous (free from interference) decision making.  If you don't have the capacity for autonomous decision making, then paternalistic interferences with your affairs are permitted.  In theory, under the MCA a person should not be denied the right to make decisions they are capable of making; but equally they should not suffer the consequences of decisions they are incapable of making.

R (NM) v Secretary of State for Justice [2011]

Thanks to Adam Wagner's Twitter feed I noticed a recent ruling relating to whether a prison acted lawfully when it decided not to investigate allegations of sexual assault on a prisoner with learning difficulties. The case, R (NM) v Secretary of State for Justice [2011] EWHC 1816 concerned whether the prison authorities were in breach of theDisability Discrimination Act 1995 and the Equality Act 2010 because they failed to make reasonable adjustments in relation to the investigation of a sexual assault against a prisoner with learning disabilities, NM. It was further considered whether the failure to conduct a formal investigation was in breach of NM's Article 3 rights. The claimant was assisted in bringing his case by the Howard League for Penal Reform. The court found in relation to all points that the defendant had acted lawfully.

I don't want to go into masses of detail about the case, but I did want to flag up a few things about the judgment that might merit further thought for disability rights campaigners.