Is mental capacity in the eye of the beholder?

DOIhttps://doi.org/10.1108/AMHID-11-2016-0035
Date06 March 2017
Published date06 March 2017
Pages30-39
AuthorAlex Ruck Keene
Subject MatterHealth & social care,Learning & intellectual disabilities
Is mental capacity in the eye of
the beholder?
Alex Ruck Keene
Abstract
Purpose The purpose of this paper written by a practising barrister specialising in the Mental Capacity
Act 2005 is to survey law and practice in England and Wales with a view to sketch out a preliminary answer
as to whether it can be said there is, in fact, any legally defensible concept of mental capacity.
Design/methodology/approach Review of case-law in England and Wales and relevant domestic and
international law, in particular the Mental Capacity Act 2005 and the Convention on the Rights of Persons with
Disabilities (CRPD).
Findings It is right, and inescapable, to say that mental capacity is in the eye of the beholder, and will
remain so even if we seek to recast our legislative provisions. Rather and perhaps ironically the conclusion
set out above means that we need to look less at the person being assessed, and more at the person doing
the assessing. We also need to further look at the process of assessment so as to ensure that those who are
required to carry it out are self-aware and acutely alive to the values and pre-conceptions that they may be
bringing to the situation.
Research limitations/implications It seems to me that it is right, and inescapable, to say that mental
capacity is in the eye of the beholder, and will remain so even if we seek to recast our legislative provisions. Absent
major developments in neuroscience, it will inescapably remain a concept which requires judgments based on
interactions between the assessor and the assessed. But that isnot thereby to say that it is an irremediably relative
and flawed concept upon which we cannotplace any weight. Rather the conclusion set out above means that we
need to look less at the person being assessed, and more at the person doing the assessing. We also need
further to look at the process of assessment so as to ensure that those who are required to carry it out are
self-aware and acutely alive to the values and pre-conceptions that they may be bringing to the situation.
Originality/value This paper serves as a reflection on the best part of a decade spent grappling with
the MCA 2005 in and out of the court room, a decade increasingly informed by and challenged by the
requirements of the CRPD.
Keywords Mental capacity act, Mental capacity, Best interests,
Paper type Viewpoint
Introduction
The law, at least in England and Wales, divides adults[1] into those who have the mental capacity
to make decisions and those who do not. This distinction is crucial, and underpins health and
social care practice, not least as it answers the questions: can I rely on this persons consent to
an action that I want to carry out? Can I override this persons refusal to consent to an action that
I want to carry out? Or can I proceed even though the person does not appear to be able to give
me consent? In theory, applying the law in England and Wales the Mental Capacity Act 2005
(MCA 2005), will always tell us the answers to these questions, and gives health and social care
practitioners the sound basis that they need to carry out their tasks.
The reality, however, is much messier, because people are messier. Indeed, the Committee on
the Rights of Persons with Disabilities has said starkly that:
Mental capacity is not, as is commonly presented, an objective, scientific and naturally occurring
phenomenon. Mental capacity is contingent on social and political contexts, as are the disciplines,
professions and practices which play a dominant role in assessing mental capacity[2].
Received 17 November 2016
Revised 24 January 2017
Accepted 6 April 2017
Alex Ruck Keene is a Barrister
at 39 Essex Chambers,
London, UK and a Wellcome
Trust Research Fellow at the
Dickson Poon School of Law,
Kings College London,
London, UK.
PAGE30
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ADVANCESIN MENTAL HEALTH AND INTELLECTUALDISABILITIES
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VOL. 11 NO. 2 2017, pp.30-39, © Emerald Publishing Limited, ISSN 2044-1282 DOI 10.1108/AMHID-11-2016-0035

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