Race, culture and capacity – in conversation with Dr Lade Smith CBE

In the latest ‘in conversation with,’ Dr Lade Smith CBE and I discuss the ways in which capacity assessments under the MCA do and do not capture the cultural aspects of capacity, and the consequences for discrimination.  

Boring but necessary caveat, nothing here constitutes legal advice.

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4 Replies to “Race, culture and capacity – in conversation with Dr Lade Smith CBE

  1. I’ve just watched this and thought that Dr Lade Smith has captured, a crucial part…that the assessors (of mental capacity) must have a good understanding of the person, and this included… has that person always made decisions using the collective wider family? Or “I must run this past my son, as he is head of the family” should not be met by suspicion but embraced if this is how the person has always made their decisions.
    It would be very different if this is a new behaviour and we would possibly think that the person is being coerced or making decisions under duress. It’s more about drilling down and finding out more about the person and their cultural preferences when it comes to decision making.
    It was an interesting watch – and I liked how they introduced the Maori way of decision making in New Zealand.
    It’s very good to stretch our minds and widen our horizons.
    We can only adapt our behaviours, armed with knowledge and challenging ourselves and our colleagues in a constructive way as we strive for best practice.

  2. And a further reply from Martin Sexton (moved from the Welcome page where it had first landed).

    This is a really interesting and important discussion. I’ have to say I think I’ve always fudged it when I’ve come across it in practice. Unlike Dr Smith I do think the problems are baked into the MCA. The only way that I can see of reconciling shared decision-making with the capacity test in the MCA is for P to be able to understand, retain etc that he/she is a member of a community that makes decisions in this way. But even if (a big if) this is acceptable, how does the assessor know when this applies and when it doesn’t? Everyone has a culture, and ‘people make decisions for themselves but not by themselves’ as Wayne Martin says in one of his papers. Shared decision-making isn’t restricted to ‘minority’ communities. What if P doesn’t fully self-identify as a member of ‘their’ community? What information do we need to know whether or not P would in fact embrace the ‘individualistic’ model of the MCA, possibly in defiance of the expectations of others? I can see these concerns being easier to accommodate in best interests decisions, e.g. if there’s evidence that P has always embraced the norms of his/her community and would be likely to want his/her family to play their accepted role. But I don’t want to put the cart before the horse and say the only answer is to squash everything into the existing legal framework. I think the problem arises from the tension between two objectives of the MCA – the desire to promote P’s autonomy, and the need to establish liability for decisions taken. Could this be unpacked and distributed in different ways?

    1. Just to clarify the last bit – I’m happy with a ‘relational’ model of autonomy rather than a narrower ‘individualistic’ concept. So the tension is between promoting P’s autonomy broadly defined (and possibly encompassing ‘communal’ decision-making), and identifying who has liability.

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