Amanda Keeling – Mental Capacity and the Right to Make Stupid Decisions

As a disclaimer, I should probably declare that this is a cross-posting, from the entry I wrote on the Law School’s mental health and capacity blog last month; as far as I know, we have little shared readership, however, and I wouldn’t want to deprive you here…

Last month, a research team across the Universities of Bristol and Bradford and the Mental Health Foundation released their report into best interests decision-making under the Mental Capacity Act 2005 (MCA).  The MCA allows for (among other things) decisions to be made for an individual when that person is found to lack the capacity to make the decision for herself.  If the individual is found to lack capacity, then a decision can be made on her behalf in her ‘best interests’.  The research team looked at a great deal of aspects around this decision-making process, but I was particularly interested in their findings regarding the first step: determining capacity.

The lack of mental capacity is the cornerstone of the Act; it is the ‘gateway’ step, and without a finding of a lack of capacity, health and social care professionals are not able to intervene.  And yet, given that it has such an important role in the legislation – and a potentially intrusive one in an individual’s life – ‘capacity’ and how to assess it is a surprisingly mercurial concept.  The MCA provides that capacity should be tested through four factors, whether the individual is able to:

–          understand information
–          retain it
–          use and weigh it,
–          and communicate their decision.

This test is primarily one of cognitive function; the quality of the decision reached by the individual should not be of issue, but rather the process by which they get there.  In section 1 of the Act, which outlines the principles underlying the legislation, it is quite clearly declared that ‘a person is not to be treated as unable to make a decision merely because he makes an unwise decision’.

On paper, this sounds relatively simple – essentially, try not to be too judgmental about people’s decisions, and observe instead their cognitive functioning ability.  What the report reveals, however, is making the distinction between an unwise decision, and one which results from a lack of capacity, is difficult for health and social care practitioners, and what seems to be happening in many cases is those individuals who have specific disabilities or histories are being assumed to lack capacity, when they make what appears to be an unwise decision.  Another result of this research has been the discovery of what the team call a ‘concertina effect’, where capacity decisions are being made simultaneously with decisions about what action is in the individual’s best interests.  They suggest that often, a decision has already been made about what course of action should be taken, and therefore a finding of a lack of capacity had to be found in order to implement it.

These two findings put together put a rather worrying light on practice around mental capacity issues.  The MCA was supposed to institute a functional test of cognitive ability, rather than a status test whereby an individual with a specific diagnosis is presumed to lack capacity by virtue of that diagnosis, or an ‘outcome’ test, where those decisions which are ‘unwise’ are deemed to be incapacitous; the thrust of this is that we should not question someone’s capacity merely on the basis they have an intellectual or cognitive disability, and are making what we perceive to be a silly decision.  What the findings of the study suggest is that the ‘status’ and ‘outcome’ approaches seem to be alive and well in practitioners practice, and that there is no space for the making of unwise decisions when you have an intellectual or cognitive disability.

All of this should be more concerning when we consider the massive leap which Article 12 of the UN Convention on the Rights of People with Disabilities (CRPD) presents in our thinking about mental capacity.  Article 12 declares that everyone; has the right to enjoyment of legal capacity, and that the State must provide adequate supports to enable that capacity to be exercised.  The MCA itself is a relatively progressive piece of legislation and should be praised, but it has to be questioned what good it is if, regardless of the letter, even the spirit of the law does not appear to be followed in many cases.  If such attitudes still persist, almost five years since the MCA came into force, then what hope does the rather more dramatic ‘paradigm shift’ of the CRPD have for changing fundamentally the way we treat people with different levels of intellectual and cognitive functioning?



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5 responses to “Amanda Keeling – Mental Capacity and the Right to Make Stupid Decisions

  1. I like this post, enjoyed this one thanks for putting up.

  2. Rosemary Cantwell

    I made a Freedom of Information Request to the General Council of the Bar on 8 April 2012 as below, via the website whatdotheyknow. I am very worried that the vagueness of the Mental Capacity Act 2005 has the potential for criminalising many decent ordinary people who support their friends and families but may be there is a “silly act” or an “error of judgement” and suddenly the law-abiding citizen suddenly finds him/herself being accused of wilful neglect and or illtreatment of a person who did not have capacity or who could reasonably be believed not to have capacity. But often this ends up in court and it is completely at the whim of the judge and jury as to what THEY believe. Where is freewill and fair play in all of this?

    (Ed. note: for Rosemary’s correspondence, originally posted here, please see

  3. Rosemary – I hope you don’t mind, but I edited your comment, as it was very long previous and distorted the page slightly. I’ve included a link to your FOI request, the text of which you had previous posted in the message. I hope that’s ok? Regards the point you are making, I am not sure that the MCA is vague enough to criminalise anyone who makes a silly mistake; wilful neglect is a high standard, and at the moment has been used in a very tiny, extreme minority of cases – Winterbourne View, for example. Most people who are acting in the individual’s best interests are unlikely to fall foul of the Court; they may be found to not be operating in the individual’s best interest as they believed (for example in Steven Neary’s case), but they will not be charged as criminals.

  4. Pingback: Amanda Keeling – Capacity Law and the Debate in Ireland | IMH Blog (Nottingham)

  5. Rosemary Cantwell

    24 August 2012
    Dear Amanda
    Thank you very much for your response above. There has been further discussion about the Mental Capacity Act 2005 and there are decisions which makes me wonder just how sensible criminalising anyone is when applying this to non-civil cases.
    Do you have any recent cases both civil and criminal to share, as some seem to be in this Court of Protection and secret justice system, which, to me, seems to be the opposite of an open democracy.
    With best wishes

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