We should emphasise that our book is designed for those who are operating within the MCA. It will therefore always be necessary for any capacity assessment to identify how the relevant impairment or disturbance in the functioning of the person’s mind or brain is said to cause the inability to make the decision in question. The reasoning adopted by the Singapore Court of Appeal in Re BKR – we suggest – can equally be adopted by those assessing capacity in England and Wales. However, and as we discuss further below (in particular in Chapter 6), this has two very important consequences:
• Adopting this reasoning may well make it easier to find that a person with a cognitive impairment enmeshed in a complex relationship lacks capacity to make material decisions.
• Such a determination can only be legitimate where it is recognised that a crucial part of any best interests decision or action is taken with a view to securing either the gaining or return of the individual’s decision-making capacity by ensuring that she is surrounded by the support that she requires.
Although our book is aimed at those who are operating within the four walls of the MCA, we emphasise that many claims about the MCA are themselves not enshrined in law but represent pervasive assumptions that can and should be challenged. We argue that the reflections we set out in the chapters that follow are both consistent with the legislation and the intent behind it. Rather than reduce questions of capacity to cognitive, mental processes, this book urges practitioners to consider how mental capacity can also be relational – meaning that our ability to make decisions requires a number of skills and abilities that are fostered within supportive contexts and relationships. Navigating the complex, difficult terrain around capacity and best interests demands a more holistic view of the individual, especially if an ethic of enablement and empowerment is to run through our professional practices of care, assessment and advocacy.
Outline of the book
First, a note on language: throughout this book we use the female pronoun in the recognition that even today our language still veers towards the use of the male pronoun. Ideally, we would have liked to avoid the use of either, fully conscious of the fluidity of these gender categories, but the impulse towards grammatical correctness leads us to use ‘she’ rather than ‘they’ when speaking of a singular individual.
Moreover, we use the term ‘impairment’ rather than ‘disability’ throughout the book: these two concepts are controversial on many levels. From a social model of disability view, the use of ‘impairment’ is preferable, mainly to denote certain factual biological features of the body and to distinguish from ‘disability’, which is thought to be caused by environmental/social/political structures. But in other models of disability, such as the International Classification of Disability (see Chapter 6), the term impairment refers to problems of body functioning which implies deviation or loss – a view that differs substantially from the neutrality of ‘impairment’ within the social model of disability. We are mindful of these differences and though we have our reservations about the social model, we nonetheless use the terms ‘impairment’ and ‘disability’ in accordance with this approach.
The purpose of our book is to provide practical, reflective guidance to practitioners on some crucial complexities within the practice of capacity and best interests assessment. Each chapter covers one area of complexity that we think will be important in light of a more relational approach to capacity. We use examples, case studies and questions to foster critical reflection of one’s own professional practices. Most of the case studies relate to decisions made by the Court of Protection, and we have deliberately chosen these to show how the relevant issue has been thought about when it has reached the court. We do not necessarily say that each decision is one that we agree with, and we point out some which we consider to be questionable.
Chapter 2 examines what autonomy means. Most practitioners understand decision-making capacity as the gatekeeper of autonomy and have ideas about what it means to respect personal autonomy, but we encourage some critical reflection on certain assumptions around the concept, such as the idea of individual self-sufficiency and independence. Instead, we introduce two key nuances to autonomy: the importance of relational autonomy – how relationships and the social context can facilitate autonomy skills – and absorbed coping: how perception, emotion and the body interact and cope with one’s environment. Incorporating these two aspects into our concept of autonomy will help practitioners become more attuned to the conditions and experiences of impairment and disablement.
Chapter 3 explores two key questions: why do relationships matter to the decision-making capacity of individuals and what kinds of skills and competencies do those around the person with impairment need to have in order to be supporting, enabling and empowering influences? We examine in more detail the specific practices and narratives of those relationships which can enhance and promote the capacity of individuals with impairments. The very nature of the functional test of capacity tends to focus more on the competencies of the individual whose capacity is in question. However, when we consider how relationships affect capacity, our focus will need to shift towards the various abilities of those around the individual with impairment.
Chapter 4 poses the questions. How can practitioners (1) distinguish between narratives that are enabling or disabling and (2) consciously engage in narrative practices that encourage and empower a person’s decision-making abilities? Certain narratives can have an impact on decision-making capacity: for instance, diminishing, denigrating narratives affect the range of choices that one envisages; they impact on the process in which individuals make decisions. The unique perceptual and cognitive challenges among those with impairment amplify the significance of surrounding narratives. We explore the importance of guarding against harmful stigmatising views about impairment where individuals are reduced to their diagnosis, and also discuss the kinds of narratives that encourage a person’s authentic self-expression and autonomy.
Chapter 5 discusses the ethical role of assessors and urges reflection on the ethical dimensions to capacity and best interests assessment. There are two dangers that arise in assessment, such as the inconsistent justification for interventions into the lives of individuals against their wishes and the exacerbation of power inequalities. To alleviate these dangers, we critically examine: (1) the presuppositions of assessment; (2) the interactions of assessment; (3) the reparative potential of assessment.
Chapter 6 questions the stark boundary between capacity and best interests. We discuss how both form part of a spectrum: a finding of incapacity does not automatically mean that the individual’s views are not important, nor does a finding of capacity mean that the obligations to support and assist individuals somehow no longer apply.
Finally, Chapter 7 briefly summarises the implications of our analysis for practitioners. We encourage practitioners to reflect on a holistic view of the person as situated within actual circumstances and relationships, so that any proposed interventions are sensitive to how the individual interacts with her environment and relational context.
1 Committee on the Rights of Persons with Disabilities, ‘General Comment on Article 12: Equal recognition before the law,’ para 23. Available at: www.ohchr.org/EN/HRBodies/CRPD/Pages/GC.aspx.
2 Ibid, para 14.