The Deprivation of Liberty Safeguards (DOLS) were recently introduced into the MentalCapacity Act (MCA) via an amendment to mental health legislation in England and Wales. As Shah (2011) discusses, the rationale behind creating these protocols was to close what is commonly referred to as the ‘Bournewood gap’; a legislative loophole that allowed a severely autistic man (H.L.) who did not initially dissent to admission to be detained in a hospital and deprived of his liberty in his (...) ‘best interests’ as judged by his clinical team. Before the implementation of the DOLS, patients who lacked the capacity to consent to admission or treatment but who were nonetheless compliant could be admitted informally and treated as .. (shrink)
The mentalcapacity Act 2005 (MCA; Department of Constitutional Affairs 2005) was partially implemented on April 1, 2007, and fully implemented on October 1, 2007, in England and Wales. The MCA provides a statutory framework for people who lack decision-making capacity (DMC) or who have capacity and want to plan for the future when they may lack DMC. Health care and social care providers need to be familiar with the MCA and the associated legal structures and (...) processes. The MCA is supported by a Code of Practice (Department of Constitutional Affairs 2007), which was developed after extensive consultation and includes case examples. Those involved in the assessment of DMC and the application of the MCA should .. (shrink)
This article considers the provisions of the MentalCapacity Act 2005 in respect of advance decisions. It considers the new statutory regulation of advance directives (termed 'advance decisions' in the Act) and the formalities necessary to effect an advance decision purporting to refuse life-sustaining treatment. The validity and applicability of advance decisions is discussed with analogy to case law and the clinician's reasonable belief in following an advance decision is considered. The article assesses the new personal welfare Lasting (...) Powers of Attorney, the situation where an attorney purports to refuse life-sustaining treatment on behalf of the donor, and the contrast between best interests and substituted judgment. (shrink)
The MentalCapacity Act (2005) is an impressive piece of legislation that deserves serious ethical attention, but much of the commentary on the Act has focussed on its legal and practical implications rather than the underlying ethical concepts. This paper examines the approach that the Act takes to best interests. The Act does not provide an account of the underlying concept of best interests. Instead it lists factors that must be considered in determining best interests, and the Code (...) of Practice to the Act states that this list is incomplete. This paper argues that this general approach is correct, contrary to some accounts of best interests. The checklist includes items that are unhelpful. Furthermore, neither the Act nor its Code of Practice provides sufficient guidance to carers faced with difficult decisions concerning best interests. This paper suggests ways in which the checklist can be developed and discusses cases that could be used in an updated Code of Practice. (shrink)
The MentalCapacity Act, which received Royal Assent in April 2005, will come into force in April 2007. The Act puts into statute the legality of interventions in relation to adults who lack capacity to make decisions on their own behalf. The aim of this paper is to outline the main features of the legislation and its impact on those health care professionals who provide care and treatment for incapacitated adults. The paper sets out the underlying ethical (...) principles that govern interventions under the Act's powers and briefly explores the legal definition of incapacity and the process by which capacity is assessed. It looks at the governing notion of 'best interests' and at the legal indemnity provided by the Act for interventions that are in the best interests of an incapacitated adult. It contains sections on the Act's main innovations, including research involving incapacitated adults, lasting powers of attorney and the new Court of Protection. It also provides information on advance decisions to refuse treatment. (shrink)
This article sets out a scenario highlighting some of the issues to be faced by NHS hospitals when dealing with patients who may require treatment under the MentalCapacity Act 2005. The article sets out matters to consider when dealing with patients in A&E, assessments of best interests, emergency treatment, lasting powers of attorney and transferring patients to nursing homes. All of these matters come under the remit of the Act.
This paper considers concerns that social care research may be stifled by health-focused ethical scrutiny under the MentalCapacity Act 2005 and the requirement for an ?appropriate body? to determine ethical approval for research involving people who are deemed to lack capacity under the Act to make decisions concerning their participation and consent in research. The current study comprised an online survey of current practice in university research ethics committees (URECs), and explored through semi-structured interviews the views (...) of social researchers engaged in or exploring work concerning people who may, under the Act, lack the capacity to make decisions to consent to participate in a research programme. The paper concludes that there was a lack of overt knowledge of and reference to the implications of the Act for research and some concerns that a restrictive focus on health-related scrutiny might prevent social care research from taking place. There was also a degree of creativity shown by social care researchers in responding to changing demands and a wish to assist people in making decisions to participate where possible. (shrink)
The hospital's clinical ethics committee sought to gauge health-care professionals’ level of knowledge and usage of the MentalCapacity Act 2005 within the hospital trust. The hospital's personnel were asked to complete a 10 part questionnaire relating to the basic contents of the Act. Four hundred questionnaires were distributed and 249 (62%) were returned completed and valid for analysis. A ‘pass-mark’ of 70% (7/10) was assumed; the results showed that 48% of respondents scored ≤50% (≤5/10), 74% of respondents (...) scored <70% (<7/10) and only 24% of respondents scored ≥70% (≥7/10). It was concluded that the MentalCapacity Act 2005 was not being effectively implemented within the Trust. Measures to increase the awareness and usage of the Act have subsequently been instigated. We believe that these measures will improve the awareness and knowledge of the MentalCapacity Act 2005 within the hospital Trust lead to its better utilization. (shrink)
The MentalCapacity Bill endangers the vulnerable by inviting human rights abuse. It is perhaps these grave deficiencies that prompted the warnings of the 23rd Report of the Joint Committee on Human Rights highlighting the failure of the legislation to supply adequate safeguards against Articles 2, 3 and 8 incompatibilities. Further, the fact that it is the mentally incapacitated as a class that are thought ripe for these and other kinds of intervention, highlights the Article 14 discrimination inherent (...) in this and related legislation. The financial, medical and research interests that underpin the legislation highlight how the legilsation endangers the ulnerable. It appears to be both a responsibility shifting exercise. Most alarmingly of all, efforts to permit non-therapeutic research on the non-consenting vulnerable as well as sterilisation and abortion on those who do not consent suggest that the legislation heralds a new era o gross human rights abuse in instutions around the UK. (shrink)
This is a response to Professor Fennell's paper on the recent influence and impact of the best interests test on the treatment of patients detained under the Mental Health Act 1983 (MHA) for mental disorder. I discuss two points of general ethical significance raised by Professor Fennell. Firstly, I consider his argument on the breadth of the best interests test, incorporating as it does factors considerably wider than those of medical justifications and the risk of harm. Secondly, I (...) discuss his contention that the apparent permeability of the line between the interests of the patient and the interests of society is something to be concerned about in itself. Since the overarching theme of the paper is the proper place of social and cultural values, my reponse considers the implications of Fennell's arguments in the light of Charlotte Brontë's novel ‘Jane Eyre’, which, through the character of Bertha Mason (the infamous ‘mad woman in the attic’) provides a provocative study of the relationship between mental disorder and society. (shrink)
It is usually appropriate for adults to make significant decisions, such as about what kinds of medical treatment to undergo, for themselves. But sometimes impairments are suffered - either temporary or permanent - which render an individual unable to make such decisions. The MentalCapacity Act 2005 sets out the conditions under which it is appropriate to regard an individual as lacking the capacity to make a particular decision (and when provisions should be made for a decision (...) on their behalf). -/- To what extent does having capacity require the endorsement of certain values? Drawing on Owens et al (2009), I assess the extent to which understanding relevant information and weighing it in coming to a decision requires certain evaluative commitments. With reference to literature on anorexia nervosa and decisions informed by religious beliefs, I argue that it is difficult to avoid the conclusion that the conditions for capacity are value-laden, and that if this is so it is important to open discussion about which patterns of distorted valuing undermine capacity, and why. (shrink)
A diagnosis of schizophrenia is often taken to denote a state of global irrationality within the psychiatric paradigm, wherein psychotic phenomena are seen to equate with a lack of mentalcapacity. However, the little research that has been undertaken on mentalcapacity in psychiatric patients shows that people with schizophrenia are more likely to experience isolated, rather than constitutive, irrationality and are therefore not necessarily globally incapacitated. Rational suicide has not been accepted as a valid choice (...) for people with schizophrenia due in part to a belief that characteristic irrationality prevents autonomous decision-making. Since people with schizophrenia are often seen to lack insight into the nature of their disorder, both psychiatric and ethical perspectives generally presume that suicidal acts result directly from mental illness itself and not from second-order desires. In this article, I challenge notions of global irrationality conferred by a diagnosis of schizophrenia and argue that, where delusional beliefs are unifocal, schizophrenia does not necessarily lead to a state of mental incapacity. I then attempt to show that people with schizophrenia can sometimes be rational with regard to suicide, where this decision stems from a realistic appraisal of psychological suffering. (shrink)
We undertake to bring a phenomenological perspective to bear on a challenge of contemporary law and clinical practice. In a wide variety of contexts, legal and medical professionals are called upon to assess the competence or capacity of an individual to exercise her own judgement in making a decision for herself. We focus on decisions regarding consent to or refusal of medical treatment and contrast a widely recognised clinical instrument, the MacCAT-T, with a more phenomenologically informed approach. While the (...) MacCAT-T focuses attention on individual cognitive performance criteria, an approach oriented by second-person phenomenology brings into view the complex role of time, others and identity in constituting the capacity for individual autonomous judgement. Our phenomenological analysis has consequences both for the practice of capacity assessments and for further research in this arena. Good practice in capacity assessment must attend to decision communities, distributed capacity, and temporal competence, while research on mentalcapacity will miss the phenomenon if it trains its focus ‘between the ears.’ We illustrate our approach by considering two recent cases of contested capacity: one involving cognitive disability in a dysfunctional decision community, the second presenting the possibility of competent decision-making under conditions of paranoid schizophrenia. (shrink)
In this Introduction, I situate the underlying project “Autonomy and Mental Disorder” with reference to current debates on autonomy in moral and political philosophy, and the philosophy of action. I then offer an overview of the individual contributions. More specifically, I begin by identifying three points of convergence in the debates at issue, stating that autonomy is: 1) a fundamentally liberal concept; 2) an agency concept and; 3) incompatible with (severe) mental disorder. Next, I explore, in the context (...) of decisional capacity assessments, the difficulties to reconcile 1) and 2) with 3) which they at the same time seem to imply. Having clarified the centrality of a cogent notion of mental disorder for addressing these difficulties, I comment on three promising lines of inquiry about the nature and scope of autonomy that emerge from the following chapters. (shrink)
Since 1998, several attempts have been made to reform the existing mental health legislation - the Mental Health Act 1983. However, all efforts thus far have been resoundingly rejected by mental health charities, psychiatrists and related professions. Following the Government's decision to abandon the draft Mental Health Bill in March 2006, plans to introduce new legislation designed to amend the existing 1983 Act have been published. This shorter bill was introduced before Parliament in November 2006. The (...) amendments focused on six key policy areas including supervised community treatment, the nearest relative, the definition of mental disorder and detention criteria. It is also intended that the MentalCapacity Act 2005 will be amended to bridge the present 'Bournewood' gap. (shrink)
The MentalCapacity Act 2005 gives statutory force to the common law principle that all adults are assumed to have capacity to make decisions unless proven otherwise. In accord with best practice, this principle places the evidential burden on researchers rather than participants and requires researchers to take account of short-term and transient understandings common among some research populations. The aim of this paper is to explore some of the implications of the MCA 2005 for researchers working (...) with 'vulnerable' populations in health and social care settings. The Cyclical Consent Model is described and offered as a process by which researchers might develop good practice when engaged in research involving vulnerable people. (shrink)
The MentalCapacity Act (2005) was designed to protect and empower patients with impaired capacity. Despite an estimated 40% of medical inpatients lacking capacity, it is unclear how many patients undergo capacity assessments and treatment under the Act. We audited the number of capacity assessments on the general medical wards of an English-teaching hospital. A total of 95 sets of case notes were reviewed: the mean age was 78.6 years, 57 were female. The most (...) common presenting complaints were feeling ‘unwell’ (n = 25) and confusion (n = 24). In all, 52 patients had conditions, such as delirium (n = 26) and dementia (n = 15), which often impair capacity. Capacity was assessed in seven (7.4%) patients, all of whom disagreed with the medical team about their treatment. The number of documented assessments fell short of the estimated rate of incapacity, suggesting that some means of improving capacity assessment in busy medical environments is required. (shrink)
A prominent but poorly understood domain of human agency is mental action, i.e., thecapacity for reaching specific desirable mental statesthrough an appropriate monitoring of one's own mentalprocesses. The present paper aims to define mentalacts, and to defend their explanatory role againsttwo objections. One is Gilbert Ryle's contention thatpostulating mental acts leads to an infinite regress.The other is a different although related difficulty,here called the access puzzle: How can the mindalready know how to act in order to reach (...) somepredefined result? A crucial element in the solutionof these puzzles consists in making explicit thecontingency between mental acts and mentaloperations, parallel to the contingency betweenphysical acts and bodily movements. The paper finallydiscusses the kind of reflexivity at stake in mentalacts; it is shown that the capacity to refer tooneself is not a necessary condition of the successfulexecution of mental acts. (shrink)
The notion of capacity implicit in the MentalCapacity Act is subject to a tension between two claims. On the one hand, capacity is assessed relative to a particular decision. It is the capacity to make one kind of judgement, specifically, rather than another. So one can have capacity in one area and not have it in another. On the other hand, capacity is supposed to be independent of the ‘wisdom’ or otherwise of (...) the decision made. (‘A person is not to be treated as unable to make a decision merely because he makes an unwise decision.’ Department of Constitutional Affairs 2005, section 1). One may have capacity even if the decision one arrives at is seen as unwise by one’s doctor. In this short note, I explore this .. (shrink)
Helga Kuhse suggested in 1985 at a session of the World Federation of Right to Die Societies in Nice, that once dehydration to death became legal and routine in hospitals, people would, on seeing the horror of it, seek the lethal injection. The strategy of legalising passive euthanasia is itself flawed. Laing argues that the MentalCapacity Bill threatens the vulnerable by inviting breaches of arts 2,3,5,8, and 14 of the European Convention on Human Rights. Most at risk (...) are the disabled and incapacitated. Sections permitting non-therapeutic research and non consensual sterilisation are at odds with the Nuremberg Code. New third party powers to dehydrate the vulnerable permit new systemic human rights abuse of a clinical though not historically unfamiliar variety. (shrink)
This paper is a response to a paper by John Coggon ‘Best Interests, Public Interest, and the Power of the Medical Profession'. It argues that certain legal judgements in relation to best interests seek to change and curtail the role of the medical profession in this arena while simultaneously extending the jurisdiction of the courts. It also argues that we must guard against replacing one professional standard, that of the medical profession, with another, that of the judiciary in this area.
With the waves of reform occurring in mental health legislation in England and other jurisdictions, mentalcapacity is set to become a key medico-legal concept. The concept is central to the law of informed consent and is closely aligned to the philosophical concept of autonomy. It is also closely related to mental disorder. This paper explores the interdisciplinary terrain where mentalcapacity is located. Our aim is to identify core dilemmas and to suggest pathways (...) for future interdisciplinary research. The terrain can be separated into three types of discussion: philosophical, legal and psychiatric. Each discussion approaches mentalcapacity and judgmental autonomy from a different perspective yet each discussion struggles over two key dilemmas: whether mentalcapacity and autonomy is/should be a moral or a psychological notion and whether rationality is the key constitutive factor. We suggest that further theoretical work will have to be interdisciplinary and that this work offers an opportunity for the law to enrich its interpretation of mentalcapacity, for psychiatry to clarify the normative elements latent in its concepts and for philosophy to advance understanding of autonomy through the study of decisional dysfunction. The new pressures on medical and legal practice to be more explicit about mentalcapacity make this work a priority. (shrink)
This article challenges the neo-Darwinist physicalist position assumed by currently prevalent naturalizing accounts of consciousness. It suggests instead an evolutionary (Deweyan) understanding of cognitive emergence and an acceptance of mentalcapacity as a phenomenon in its own right, differing qualitatively from, although not independent of, the physical and material world. I argue that if we accept that consciousness is an adaptation enabling survival through immediate individual intuition of the world, we may accept this metaphysics as a given. Methodological (...) focus can then shift to investigating the, as yet untheorized, nature of consciousness itself as capacity/interconnectivity/potential. The article accepts Joseph Margolis's recent advocacy of a pragmatist approach that is "natural but not naturalizable" (Margolis 2002, 7), that is, an anti-reductionist as opposed to an eliminativist position, but it seeks to develop this position further and to give it new direction. (shrink)
This short review examines the work of four Canadian scholars addressing a variety of questions about criminal responsibility. The essays under review are a small part of a recent collection of essays entitled “Rethinking Criminal Law Theory: New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Criminal Law.”.
The discriminatory effects of categorizing psychiatric patients into competent and incompetent, have urged lawyers, philosophers and health care professionals to seek a functional approach to capacity assessment. Dutch and English law have produced some guidelines concerning this issue. So far, most legal systems under investigation have concentrated on alternatives for informed consent by the patient in case of mental incapacity, notably substitute decision-making, intervention of a judge and advance directives. It is hard to judge the way in which (...) the law may further adapt to a more functional assessment of capacity, because the nature of law shows that legal reforms usually take place only when new methods have been accepted by the field. This is not yet the case today. (shrink)
This paper develops and defends the capacity view, that is, the view that the ability to perceive the perspective-independent or intrinsic properties of objects depends on the perceiver’s capacity to act. More specifically, I argue that self-location and spatial know-how are jointly necessary to perceive the intrinsic spatial properties of objects. Representing one’s location allows one to abstract from one’s particular vantage point to perceive the perspective-independent properties of objects. Spatial know-how allows one to perceive objects as the (...) kind of things that are perceivable from points of view other than one’s own and thus to perceive them as three-dimensional space occupiers. (shrink)
We present an account of processing capacity in the ACT-R theory. At the symbolic level, the number of chunks in the current goal provides a measure of relational complexity. At the subsymbolic level, limits on spreading activation, measured by the attentional parameter W, provide a theory of processing capacity, which has been applied to performance, learning, and individual differences data.
It is a characteristic feature of our mental make-up that the same perceptual input situation can simultaneously elicit conflicting mental perspectives. This ability pervades our perceptual and cognitive domains. Striking examples are the dual character of pictures in picture perception, pretend play, or the ability to employ metaphors and allegories. I will argue that traditional approaches, beyond being inadequate on principle grounds, are theoretically ill-equipped to deal with these achievements. I will then outline a theoretical perspective that has (...) been emerging from a theoretical convergence of perceptual psychology, ethology, linguistics, and developmental research. On the basis of this framework, I will argue that corresponding achievements are brought forth by a specific type of functional architecture whose core features are: (i) a perceptual system that is biologically furnished with a rich system of conceptual forms, (ii) a triggering relation between the sensory input and conceptual forms by which the same sensory input can be exploited by different types or systems of conceptual forms, and (iii) computational principles for handling semantically underspecified conceptual forms. Characteristic features of the proposed theoretical framework will be pointed out using the Heider-Simmel phenomenon as an example. (shrink)
This paper considers the role of the concept of best interests in the treatment of mental disorder. It considers the MentalCapacity Act 2005 where treatment of an incapacitated person’s mental disorder is authorized if treatment is in the patient’s own best interests. It also examines the Mental Health Act 1983 as amended by the Mental Health Act 2007 where treatment without consent of a detained patient is allowed where necessary for the patient’s health (...) or safety or for the protection of others. Under both statutory regimes treatment must be in the best interests of the patient. This paper argues that ‘best interests’ is open to interpretation to include treatment interventions carried out primarily to protect other people. (shrink)
The mental competence of people requesting aid-in-dying is a key issue for the how the law responds to cases of assisted suicide. A number of cases from around the common law world have highlighted the importance of competence in determining whether assistants should be prosecuted, and what they will be prosecuted for. Nevertheless, the law remains uncertain about how competence should be tested in these cases. This article proposes a test of competence that is based on the existing common (...) law but which is tailored to cases of assisted suicide. The test will help doctors, other health professionals and lawyers determine whether the suicidal person was able to competently request assistance. Such knowledge will help to reduce some of the current uncertainty about criminal liability in cases of assisted suicide. (shrink)
Many of the world’s mental health acts, including all Australian legislation, allow for the coercive detention and treatment of people with mental illnesses if they are deemed likely to harm themselves or others. Numerous authors have argued that legislated powers to impose coercive treatment in psychiatric illness should pivot on the presence or absence of capacity not likely harm, but no Australian act uses this criterion. In this paper, I add a novel element to these arguments by (...) comparing the use of the harm to others justification for coercive treatment in mental illness with its use in illness due to infectious disease, and suggest a double standard applies. People with mental illness are subjected to coercive treatments at levels of risk to others far, far lower than would precipitate coercive treatment in people with influenza. In effect, this element of mental health legislation represents an example of sanism—state-sanctioned discrimination against people with mental illnesses. (shrink)
Direct brain intervention based mentalcapacity restoration techniques—for instance, psycho-active drugs—are sometimes used in criminal cases to promote the aims of justice. For instance, they might be used to restore a person’s competence to stand trial in order to assess the degree of their responsibility for what they did, or to restore their competence for punishment so that we can hold them responsible for it. Some also suggest that such interventions might be used for therapy or reform in (...) criminal legal contexts—i.e. to make non-responsible and irresponsible people more responsible. However, I argue that such interventions may at least sometimes fail to promote these responsibility-related legal aims. This is because responsibility hinges on other factors than just what mental capacities a person has—in particular, it also hinges on such things as authenticity, personal identity, and mentalcapacity ownership—and some ways of restoring mentalcapacity may adversely affect these other factors. Put one way, my claim is that what might suffice for the restoration of competence need not necessarily suffice for the restoration of responsibility, or, put another way, that although responsibility indeed tracks mentalcapacity it may not always track restored mental capacities. (shrink)