OVERCOMING
CHALLENGES
IN THE MENTAL
CAPACITY ACT 2005
Practical Guidance for
Working with Complex Issues
CAMILLIA KONG and
ALEX RUCK KEENE
Foreword by Professor Anselm Eldergill
Contents
Foreword by Professor Anselm Eldergill
1. The Legal Landscape and the Challenge for Practitioners
3. Why Relationships Matter
4. Enabling and Disabling Narratives
5. The Ethical Role of the Capacity and Best Interests Assessor
6. Capacity and Best Interests: A Not-So-Bright Line
7. Conclusion
Appendices
References and Further Information
Index
Foreword
Professor Anselm Eldergill
This book is written by two leading thinkers in their respective fields so you would expect it to be very good. And it is.
Camillia Kong is a moral and political philosopher with interests in ethical issues around mental capacity and psychiatric treatment. Her previous book Mental Capacity in Relationship: Decision-Making, Dialogue, and Autonomy broke significant new ground in its exploration of the role of relationships in the decision-making capacity of people with impairments and mental disorders.
Alex Ruck Keene is well-known as a key British legal thinker in the field of mental capacity law. In recognition of his talents, both the Law Commission and the Department of Health have relied heavily on him in their development of new mental capacity and mental health laws concerning deprivation of liberty. As with many of the best legal thinkers, he studied the humanities (at Oxford and Johns Hopkins) before gravitating towards the law. That breadth of learning enables him to avoid the rigid and unimaginative tramlines that can limit the understanding of lawyers whose learning is limited to the law.
By combining the insights of a leading philosopher and lawyer, the authors seek to provide a set of ethical principles that can inform both the capacity assessment itself and the making of best interests decisions under the Mental Capacity Act. In pursuing that end they examine with great skill, clarity and empathy a considerable number of concepts and assumptions that underlie conventional professional approaches to mental capacity and incapacity.
Of particular significance is the concept of ‘relational autonomy’ and the role played in mental capacity by relationships—the fact that people ‘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’.
This is not only relevant to determinations of whether a particular decision is in an incapacitated person’s best interests. It also requires us to consider whether capacity is a narrow cognitive test or whether it is, at least in part, determined by the interaction between the person and their relationships. The authors believe that it is legitimate to interpret the Mental Capacity Act in the latter way. Furthermore, they consider that such an approach provides a better method of responding to the complexities of many cases. Everyone in the field can benefit from considering carefully their evidence and reasoning.
It is certainly true that one of the most difficult kinds of case in practice is that where a person with impaired mental capacity is living with a parent, spouse or partner in a relationship which professionals in positions of authority consider to be unhealthy. This may be because the professionals see the relationship as fundamentally abusive or because they believe it prevents the individual from developing independence. The professionals may decide to remove the individual from their home and their only close relationship in order to protect them from this harm, and to help them develop skills and potentialities which enhance their capacity to be autonomous.
The power of professionals to invoke what is called the High Court’s inherent jurisdiction recognises that a vulnerable adult who is not incapacitated by mental disorder may be disabled from making a free choice because of the undue influence of a partner, family member or close friend. It must be true that a person with a significant mental health problem may similarly be vulnerable to undue influence, which in their case acts as an additional negative factor on their decision-making. However, it is usually difficult to demarcate the contribution made by the person’s mental disorder to their active or passive decision to remain at home in the relationship, the contribution made by undue influence or unequal power, the interplay of these different forces, the effect of household relationships with professionals in positions of authority, and how the professionals’ own relationships, past and present, colour their approach.
These are all profoundly difficult questions because there is no greater example of the undue influence of a third party on a person’s life than the unjustified intervention of a judge, social worker or other professional in a position of authority. HL Menken once wryly observed that there is always an easy solution to every human problem: one which is neat, plausible, and wrong. Fortunately, the authors’ approach is elegant and nuanced, and they resist the temptation to come up with simple, binary, answers to such complicated problems.
They remain throughout fully aware of the considerable dangers implicit in the concept of ‘positive liberty’ and any notion that autonomy requires a choice that is ‘authentically’ mine. Rather than honestly say, ‘I know you don’t think or will this but I sincerely believe that it is in your best interests’, the authentic voice approach involves the professional saying, ‘You may think you know what you wish but you lack reason and you are unable to exert your will. I actually know what you will, what you wish, better than you. The rational you wishes me to do this, to compel you to have this treatment that you appear to resent.’ It is an approach that brings to mind the warning of Sir Isaiah Berlin:
‘Even though men suffer ... in the process, they are lifted by it to a height to which they could never have risen without my coercive – but creative – violation of their lives. This is the argument used by every dictator, inquisitor, and bully who seeks some moral, and even aesthetic, justification for his conduct. I must do for men (or with them) what they cannot do for themselves, and I cannot ask their permission or consent, because they are in no condition to know what is best for them.’1
This is a powerful book which deserves a wide circulation, and not merely because it is elegantly argued and full of valuable insights. It is within the home and our relationships — not within Parliament or political assemblies — that the struggle for human rights begins, as Eleanor Roosevelt (the first Chairperson of the United Nations Commission on Human Rights) so eloquently observed:
‘Where, after all, do universal human rights begin? In small places, close to home — so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighborhood he lives in; the school or college he attends; the factory, farm, or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.’
This