In England and Wales, the concept of mental capacity is codified in the Mental Capacity Act 2005 (MCA). Central to this concept is the functional test – whether the person can understand, retain, use and weigh information relevant to the decision, and communicate the decision that they have made. But what does it actually mean to ‘understand’ information, or to ‘use or weigh’ information? The MCA does not contain any amplification of these phrases. While they carry legal meaning, these terms may not mean the same to all those who seek to apply them in health or social care practice.
Equally importantly, not all of the phenomena that professionals encounter in practice will fall cleanly under terms within the MCA functional test. Consider, for example, a person who declines to accept that they have an illness, or a person who seems not to care that the consequences of that illness could be very serious for them. This problem is well-identified in relation to the clinical concept of insight (and specifically ‘red-flagged’ as a concern in the 2018 NICE guidance on decision-making and mental capacity – see paragraph 14.24) but applies equally to many other phenomena.
As part of the Wellcome-funded Mental Health and Justice project, we wanted to start to bridge this translation gap. To do so, we turned in the first instance to the rich resource of Court of Protection (and relevant Court of Appeal) judgments, containing as they do both extensive extracts of evidence given by professionals (often, but not exclusively, psychiatrists) and the interrogation of that evidence by judges. In a paper published on 5 February 2021 in PLOS ONE, we analysed all available judgments where the terms of the MCA were applied in a way which went beyond merely repeating the words of the statute. Using this analysis, we developed a set of what we have called ‘capacity rationales,’ explanations given by the judge or expert witness for why a person did or did not have capacity to make the relevant decision. This typology has nine categories; (1) to grasp information or concepts; (2) to imagine/ abstract; (3) to remember; (4) to appreciate; (5) to value/ care; (6) to think through the decision non-impulsively; (7) to reason; (8) to give coherent reasons; and (9) to express a stable preference.
In our paper, we explain in detail how we developed these rationales from the text of the judgments, how different rationales appeared to be linked to particular impairments of mind or brain, and how we might begin to use these rationales to develop a more transparent and accountable way of applying the legal test of mental capacity to the phenomena encountered in practice. This task will require some care, not least because one of our findings was that MCA terms such as ‘use or weigh’ are often used in different ways. But allowing identification of a set of capacity building blocks, with a clear foundation in Court of Protection judgments, means that, at a minimum, we can start the conversation about what an inability to use and weigh might mean at a more gritty level. It also means that we can start to interrogate whether any of the rationales that emerge from our study are ‘edgier’ than others, such that reliance upon them for capacity determinations either inside or outside the courtroom should draw more scrutiny. Last but by no means least, we suggest that outlining these rationales will enable us to offer more specific and targeted decision-making support, to better meet our obligation under s.1(3) MCA 2005.
(Post co-written by Nuala and I)