Contested Assessment

There is currently a very strong challenge to the “functional” model of decision-making capacity (‘DMC’) embedded in many legislative systems, including those in England & Wales and Scotland. At its highest, and as put by the Committee on the Rights of Persons with Disabilities, the challenge is that “[m]ental capacity is not, as is commonly presented, an objective, scientific and naturally occurring phenomenon. Mental capacity is contingent on social and political contexts, as are the disciplines, professions and practices which play a dominant role in assessing mental capacity.”

We start from the point that there are circumstances under which individuals are (either temporarily or permanently) factually incapable of making decisions, and that mechanisms will always be required to respond to such factual incapacity – even if they are in due course retooled to focus on supporting the legal capacity of the individual. For an overview of some of the debates in this area, see the early research article by Alex Ruck Keene, one of the members of the team.

There is no doubt, though, that there are many cases that arise under the current legislative regimes designed for this purpose whose resolution is difficult, and where outcomes at present – whether inside or outside the court room – all too often seem unsatisfactory.

This work stream will lay the groundwork to enable more satisfactory capacity assessments in these cases. The model for such intervention, to be developed in conjunction with practitioners tasked to make such assessments as well as individuals with lived experience, is one which will be tailored to the current English legal regime (the Mental Capacity Act 2005) but which will be capable of adaptation to any framework where responses are needed to factual incapacity.

In the first phase of the project, we analysed all reported cases from the Court of Protection in England and Wales where factual incapacity has been in issue or substantively considered. We did so in order to create a body of evidence against which to test hypotheses of what constitutes a satisfactory assessment. This led to our first published article: Ruck Keene, A., Kane, N. B., Kim, S. Y., & Owen, G. S. (2019). Taking capacity seriously? Ten years of mental capacity disputes before England’s Court of Protection. International Journal of Law and Psychiatry, 62, 56-76.

We added to that body of evidence by examining reported cases from Scotland and New Zealand for relevant differences arising out of their similar, but not identical legislative frameworks. In the next phase of the project, we started to develop a typology of hard cases from both the cases decided by the Court of Protection and by purposeful sampling of “hard” cases from non-court settings using interviews with liaison psychiatrists, and legal practitioners from all three jurisdictions. We also interviewed current and retired members of the judiciary in England and Wales who are or have been responsible for making the final determination of mental capacity for purposes of the Mental Capacity Act 2005. Separately, the evidence gathered in our interviews enabled us refine our hypotheses as to what might be considered satisfactory resolution of such cases. We tested our typology in a range of settings, including in two masterclasses, and with the SUAG.

Our work in this phase will lead (in conjunction with other workstreams) research-led guidance for those assessing and reporting upon capacity.

Separately, our work upon capacity assessments in complex situations helped inform the work (led by Workstream 3) that fed into the independent review of the Mental Health Act 1983 as to advance decision-making.

The project has as its primary goal the production of practical and research-led guidance for those assessing and reporting upon capacity. Secondary outputs will include research papers and articles drawing upon the research conducted at the earlier stages of the project, which will be both descriptive and – where relevant – critical of current practice.