Section 4, in turn, sets out a checklist of factors that must be considered in deciding what is in a person’s best interests, aimed at identifying those issues most relevant to the individual who lacks capacity (as opposed to the decision-maker or any other persons). Although the test is intended to be an objective one, the courts have made clear that the purpose of the best interests is to require the decision-maker to consider matters from the person’s point of view (Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67). The person’s ascertainable wishes and feelings therefore carry great weight, even if they are not determinative (Briggs v Briggs & Ors [2016] EWCOP 53).
Standing alongside the MCA is the inherent jurisdiction of the High Court to protect ‘vulnerable adults’: those who have mental capacity applying the MCA test, but who are or are reasonably believed to be, either (1) under constraint or (2) subject to coercion or undue influence or (3) for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent (A Local Authority v (1) MA (2) NA and (3) SA [2005] EWHC 2942; endorsed in DL v A Local Authority and Others [2012] EWCA Civ 253). The precise extent of the High Court’s jurisdiction – described in DL v A Local Authority and Others as ‘the great safety net’ – is unclear. In particular, it is ambiguous as to whether it is limited to taking steps directed against those who are coercing or placing the individual under duress, or whether the High Court can take steps directed against the vulnerable adult herself (i.e., to remove her from the place where she is subject to coercion).
As discussed in Chapter 6, we take the view that, while there is undoubtedly an important place for the use of the inherent jurisdiction to create a ‘safe space’ around the individual, its use against the person herself is difficult to reconcile with the distinction currently drawn in the law between those with capacity and those without capacity. There are other ways in which to draw the line, but for better or worse, the law at present in England and Wales does draw this distinction. One of the key purposes of this book is to outline how we can better respond within the framework of the MCA to those situations in which a person is suffering harm as a result of a combination of a cognitive impairment and the actions of those around them. We address this in the second section of this chapter after we have sketched an outline of how the CRPD challenges both law and practice in this area.
The CRPD was concluded in 2006. It seeks to bring about a radical change in the approach adopted in the social, political and legal arenas to those with disabilities (and, indeed, to the very concept of disability). Among other provisions, it seeks to bring about a fundamental shift away from the taking of decisions on behalf of individuals on the basis of an asserted lack of mental capacity. The CRPD has been very widely ratified, including by the UK. The CRPD has not been incorporated into domestic law, so it does not directly bind practitioners in the same way as does the European Convention on Human Rights (ECHR). However, it imposes obligations on the UK as a state, and is now routinely referred to by both the European Court of Human Rights and the English courts to help interpret the ‘living instrument’ of the ECHR as it applies to person with disabilities. At least as interpreted by the Committee on the Rights of Persons with Disabilities, compliance with Article 12 of the CRPD (which provides for equal recognition before the law) means that states party to the CRPD should replace legislation providing for substitute decision-making for incapacitated adults based ‘on what is believed to be in the objective “best interests” of the person concerned, as opposed to being based on the person’s own will and preferences’.1 The Committee also denies the validity of the concept of mental capacity, contending that it is contingent on social and political contexts ‘as are the disciplines, professions and practices which play a dominant role in assessing mental capacity.’2 In 2017, the Committee examined the compliance of the UK with the CRPD, and recommended that the UK ‘abolish[ed] all forms of substituted decision-making concerning all spheres and areas of life by reviewing and adopting new legislation in accordance with the Convention to initiate new policies in both mental capacity and mental health laws,’ and ‘repeal[ed] legislation and practices that authorise non-consensual involuntary, compulsory treatment and detention of persons with disabilities on the basis of actual or perceived impairment’.3 Adopting this recommendation would mean repealing not just the Mental Health Act 1983 but also the MCA. There is, in reality, little prospect that the government will do so; further, there is a live and hot debate as to whether the government should do so.
That debate is outside the scope of this book.4 Our core task is to enable those applying the law as it stands to better respond to situations of complexity, rather to suggest how the law might change.5 Nonetheless, we should perhaps lay our cards on the table here and make clear that:
• We do not consider the concept of mental capacity to be fundamentally illegitimate, even if we would be the first to admit that how it is assessed often leaves much to be desired.
• We do not consider the concept of ‘best interests’ to be fundamentally illegitimate, especially where it is interpreted in the fashion required by the case law, which requires real weight to be given to the wishes and feelings of the individual.
• As discussed further in Chapter 2, we consider that the approach of the Committee on the Rights of Persons with Disabilities is predicated on an extremely ‘thin’ version of autonomy which does not always serve the interests of individuals with cognitive impairments.
• Intervention to secure the interests of those with cognitive impairments enmeshed in disabling relationships is not contrary to the CRPD (taken as a whole) and in fact can be required, by Article 16(1).6 Such interventions should – primarily – be directed against the third parties who are harming the interests of the individual. However, steps can properly be taken in the best interests of the individual where she lacks the requisite mental capacity (i.e., to remove her to a safe place or prevent her having contact with the abuser) and where such steps can properly be justified as promoting her health, welfare, self-respect and dignity – for instance, her autonomy in the wider sense.7 This is so even if the individual objects to those steps. However, the greater the objection, the greater the justification required.
• While it is not the primary focus of this book, there may also be circumstances when, so as to secure these same interests, care or treatment may need to be delivered to an individual lacking capacity to consent. Again, such may be done in the face of her objection where there are sufficiently cogent reasons to consider that such will secure her health, welfare, self-respect and dignity.
Capacity: causative nexus or embedded within actual circumstances?
As set out above, we share the view that the concept of mental capacity is legitimate; further, we share the aim that we want to write a book which is of use to practitioners applying the MCA as it stands. However, we also share grave reservations about one model of decision-making capacity which entirely divorces the individual’s cognitive abilities from the circumstances in which she finds herself. As we have seen above, the MCA provides that a person lacks capacity in relation to a matter if at the material time, she is unable to make a decision in relation to it (i.e., she cannot understand, retain, use or weigh the relevant information, or communicate her decision) because of a disturbance or impairment