Avoiding hard capacity assessments will not help

Workstream 6
9 Aug, 2019

In response to Zhong et al, A pragmatist’s guide to the assessment of decision-making capacity, published in The British Journal of Psychiatry, Volume 214, Issue 4 April 2019, Nuala Kane, Alex Ruck Keene, and Gareth Owen write:

Avoiding hard capacity assessments will not help

“We read with interest Zhong et al’s editorial outlining a ‘pragmatist’s guide’ to assessment of decision-making capacity(1). The authors argue that a subset of ‘grey area’ capacity cases cause ‘moral distress’ in clinicians and propose that “capacity is only practically important when the treatment team is willing to proceed with forced treatment. Absent this condition, the outcome would be the same as simply honouring the patient’s choice, and there is no need (apart from intellectual satisfaction) to assess capacity”. In our view, this is problematic advice.

“Some capacity assessments are easily resolved, and Zhong et al. give helpful examples of cases where time, education, treating illness and negotiating with the person negate capacity questions. Indeed, in England and Wales, the Mental Capacity Act (MCA) lays out the imperative to do this(2). Yet to collapse all hard capacity questions into a coercion test fails to grapple with the range of clinical sources of ‘moral distress’ and the legal doctrine of informed consent.

“Firstly, the question ‘would we force treatment?’ is not necessarily an easy one. Decisions about coercion generated moral discomfort in clinicians long before capacity emerged as a legal construct(3), and discomfort can arise when forced treatment is not at issue: consider a depressed person assenting to ECT because she feels that she deserves punishment. Furthermore, the question ‘would we force treatment?’ is all too easily reduced to its sibling: ‘can we force treatment?’ The authors raise the issue of whether adequate resources are available to restrain a person who refuses antibiotic treatment, arguing that if not, the capacity question is moot. However, even with such resources readily available, the ethical question persists: is forcing treatment the right thing to do in this case? This holds in all capacity cases, not merely gray area cases.

“Several Court of Protection determinations have upheld the wishes of a person found to lack capacity, ruling out coercion, through a careful ‘Best Interests’ process(4). This involves recognition of current and prior wishes of the person, advance directives and views of family. Zhong et al.’s alternative model is a risk-benefit analysis carried out by clinicians. It is telling that they consider medical risks only (pressure sores, prolonged hospital stay) and pay little import to the perspective and lived experience of the person facing coercion. The MCA also provides a defensible process for clinicians, with capacity assessments providing legal clarity on where decisional authority lies.

“The authors contrast a scenario in which a hypomanic patient faces imminent death by sepsis with a scenario in which the infection is mild and outpatient antibiotics will suffice. Yet such vastly different facts, contexts and consequences of a decision can be legitimately incorporated into a capacity assessment as a component of the ‘relevant information’ that a person must ‘understand, retain, use or weigh’ under the MCA.

“Avoidance is not the best approach to moral distress. More research on hard capacity cases and on education and training to improve approaches to them is a healthier path(5).”


1. Zhong R, Sisti DA, Karlawish JH. A pragmatist’s guide to the assessment of decision-making capacity. The British Journal of Psychiatry. 2019 Apr;214(4):183-5.

2. The Mental Capacity Act 2005, Section 1(3).

3. Austin WJ, Kagan L, Rankel M, Bergum V. The balancing act: psychiatrists’ experience of moral distress. Medicine, Health Care and Philosophy. 2008 Mar 1;11(1):89.

4. See, for example, Wye Valley NHS Trust v B [2015] EWCOP 60

5. Mental Health and Justice, 2018.

Response published: 23 July 2019

Originally published online by Cambridge University Press: 21 March 2019

DOI: https://doi.org/10.1192/bjp.2019.17