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  • Print publication year: 2010
  • Online publication date: February 2011

4 - Capacity assessment in practice


In Re B (Adult: Refusal of Medical Treatment), Dame Butler-Sloss P described the test for capacity as ‘clear and easily to be understood by lawyers’. In fact, as this chapter shows, while the outline of the legal test may be stated with ease, what the test actually means is far from clear. Lord Phillips CJ was perhaps nearer the mark when he described capacity as ‘an important, but by no means straightforward concept under English law’. The lack of clarity increases the likelihood of assessors including their own views regarding the appropriateness of the patient's decision as part of the assessment of whether or not she has capacity. The legal test, however, represents just one part of the overall framework for capacity assessment in practice. The kind of process employed in testing for capacity is crucial both in ensuring accurate assessments and in developing the capacity of the person assessed, as is required under the Mental Capacity Act 2005 (MCA). In this respect, formal judicial determinations of capacity comprise a very small proportion of such determinations. For the most part, the law has delegated the function of assessing capacity to non-judicial assessors. These are primarily healthcare professionals, and in most serious cases involving healthcare decisions, they are likely to be medical professionals. Furthermore, even when capacity is judicially determined, judicial conclusions are heavily reliant on expert evidence from professionals.

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Donnelly, M., ‘Assessing Capacity under the Mental Capacity Act 2005: Delivering on the Functional Approach?’ (2009) 29 Legal Studies 464
Bauby, J.-D., The Diving Bell and the Butterfly (Paris: A. Knopf, 1997)
Gunn, M., ‘The Meaning of Incapacity’ (1994) 2 Medical Law Review 8, 24
Fennell, P., ‘Informal Compulsion: The Psychiatric Treatment of Juveniles under Common Law’ (1992) 4 Journal of Social Welfare and Family Law 311, 324
Buchanan, A. and Brock, D., Deciding for Others: The Ethics of Surrogate Decision-Making (New York: Cambridge University Press, 1989), p. 24
Douglas, G., ‘The Retreat from Gillick’ (1992) 55 Modern Law Review 569
Abernethy, V., ‘Compassion, Control and Decisions About Competency’ (1984) 141 American Journal of Psychiatry 53, 57
Roth, al., ‘Tests of Competency to Consent to Treatment’ (1977) 134 American Journal of Psychiatry 279, 281–2
Folstein, al., ‘Mini Mental State – A Practical Method for Grading the Cognitive State of Patients for the Clinician’ (1975) 12 Journal of Psychiatric Research 189
Grisso, T., Evaluating Competencies: Forensic Assessments and Instruments (2nd edn) (Dordrecht: Kluwer Academic, 2002)
Dunn, al., ‘Assessing Decisional Capacity for Clinical Research or Treatment: A Review of Instruments’ (2006) 163 American Journal of Psychiatry 1323
Bartlett, P. and Sandland, R., Mental Health Law: Policy and Practice (3rd edn) (Oxford University Press, 2007), p. 514
Gunn, M. al., ‘Decision-Making Capacity’ (1999) 7 Medical Law Review 269, 305
Appelbaum, P. and Grisso, T., ‘The MacArthur Treatment Competence Study I: Mental Illness and Competence to Consent to Treatment’ (1995) 19 Law and Human Behaviour 105, 109
Grisso, T. and Appelbaum, P., Assessing Competence to Consent: A Guide for Physicians and Other Health Professionals (Oxford University Press, 1998)
Jones, M., ‘Informed Consent and Other Fairy Stories’ (1999) 7 Medical Law Review 103, 125–7
Grubb, A., Kennedy and Grubb Medical Law (3rd edn) (London: Butterworths, 2000), p. 616
Grisso, T. and Appelbaum, P., ‘The MacArthur Treatment Competence Study III: Abilities of Patients to Consent to Psychiatric and Medical Treatments’ (1995) 19 Law and Human Behaviour 149
Tan, al., ‘Competence to Make Treatment Decisions in Anorexia Nervosa: Thinking Processes and Values’ (2006) 13 Philosophy, Psychology and Psychiatry 267, 271–72
Galligan, D. J., Due Process and Fair Procedures (Oxford: Clarendon Press, 1996)
Tyler, T., The Social Psychology of Procedural Justice (New York: Plenum, 1988)
Tyler, T., Why People Obey the Law (New Haven: Yale University Press, 1990)
Peay, J., Tribunals on Trial (Oxford; Clarendon Press, 1989), pp. 44–5
Dennis, D. and Monahan, J. (eds.) Coercion and Aggressive Community Treatment: A New Frontier in Mental Health Law (New York: Plenum Press, 1996), p. 24
Freckelton, I., ‘Mental Health Review Tribunal Decision-Making: A Therapeutic Jurisprudence Lens’ (2003) 10 Psychiatry, Psychology and Law 44
Winick, B., ‘The Right to Refuse Mental Health Treatment: A Therapeutic Jurisprudence Analysis’ (1994) 17 International Journal of Law and Psychiatry 99, 100
Diesfeld, K. and Freckelton, I. (eds.) Involuntary Detention and Therapeutic Jurisprudence: International Perspectives on Civil Commitment (Aldershot: Ashgate, 2003), p. 337
Perlin, M., ‘Fatal Assumption: A Critical Evaluation of the Role of Counsel in Mental Disability Cases’ (1992) 16 Law and Human Behaviour 39
Perlin, M., ‘Is it More Than “Dodging Lions and Wastin’ Time”? Adequacy of Counsel, Questions of Competence, and the Judicial Process in Individual Right to Refuse Treatment Cases” (1996) 2 Psychology, Public Policy and Law 114, 120
Carney, T., et al., ‘Advocacy and Participation in Mental Health Cases: Realisable Rights or Pipe-dreams?’ (2008) 26 Law in Context 125
Bartlett, P., ‘A Matter of Necessity: Enforced Treatment under the Mental Health Act’ (2007) 15 Medical Law Review 86, 91
Donnelly, M., ‘Assessing Legal Capacity: Process and the Operation of the Functional Test’ [2007] 2 Judicial Studies Institute Journal 141, 161–8
Donnelly, M., ‘Treatment Reviews: Legalism, Process and Rights Protection’ in B. McSherry and P. Weller (eds.) Rethinking Rights-Based Mental Health Law (Oxford: Hart Publishing, 2010) pp. 282–3
Vittoria, A., ‘The Elderly Guardianship Tribunal Hearing: A Socio-Legal Encounter’ (1992) 6 Journal of Aging Studies 165
Carney, T. and Tait, D., The Adult Guardianship Experiment (Annandale, NSW: Federation Press, 1997)
Goffman, E., The Presentation of Self in Everyday Life (New York: Doubleday, Anchor, 1959)
Shaddock, A. al., ‘Communicating With People With an Intellectual Disability in Guardianship Board Hearings: An Exploratory Study’ (1999) 24 Journal of Intellectual and Developmental Disability 279
Shelford, L., Practical Treatise on the Law Concerning Lunatics, Idiots, and Persons of Unsound Mind (Philadelphia: J. S. Littell, 1833), p. 40
Krasik, M., ‘The Lights of Science and Experience: Historical Perspective on Legal Attitudes Toward the Role of Medical Expertise in Guardianship of the Elderly’ (1989) 33 American Journal of Legal History 201
Woolf, L, ‘Are the Courts Excessively Deferential to the Medical Profession?’ (2001) 9 Medical Law Review 1, 1
Gutheil, T. and Bursztajn, H., ‘Clinicians’ Guidelines for Assessing and Presenting Subtle Forms of Patient Incompetence in Legal Settings' (1986) 143 American Journal of Psychiatry 1020, 1020
Stefan, S., ‘Leaving Civil Rights to the “Experts”: From Deference to Abdication Under the Professional Judgment Standard’ (1992) 102 Yale Law Journal 639
Bersoff, D., ‘Judicial Deference to Nonlegal Decisionmakers: Imposing Simplistic Solutions on Problems of Cognitive Complexity in Mental Disability Law’ (1992) 46 Southern Methodist University Law Review 329
Perlin, M., ‘Pretexts and Mental Disability Law: The Case of Competency’ (1993) 47 University of Miami Law Review 625
Morris, G., ‘Judging Judgment: Assessing the Competence of Mental Patients to Refuse Treatment’ (1995) 32 San Diego Law Review 343
Haroun, A. M. and Moss, G. H., ‘Weaving a Tangled Web: The Deceptions of Psychiatrists’ (1999) 10 Journal of Contemporary Legal Issues 227
Marson, al., ‘Consistency of Physicians’ Judgments of Capacity to Consent in Mild Alzheimer's Disease' (1997) 45 Journal of the American Geriatrics Society 132
Jackson, E. and Warner, J. W., ‘How Much do Doctors Know About Consent and Capacity?’ (2002) 95 Journal of the Royal Society of Medicine 601
Suto, al., ‘Substitute Financial Decision-making in England and Wales: A Study of the Court of Protection’ (2002) 24 Journal of Social Welfare and Family Law 37
Ganzini, al., ‘Pitfalls in Assessment of Decision-Making Capacity’ (2003) 44 Psychosomatics 237
Shah, A. and Mukherjee, S., ‘Ascertaining Capacity to Consent: A Survey of Approaches Used by Psychiatrists’ (2003) 43 Medicine, Science and the Law 231
Raymont, al., ‘Prevalence of Mental Incapacity in Medical Inpatients and Associated Risk Factors: Cross-Sectional Study’ (2004) 364 Lancet 1421
Ramsey, S., ‘The Adults With Incapacity (Scotland) Act – Who Knows? Who Cares?’ (2005) 45 Scottish Medical Journal 20
Cairns, al., ‘Reliability of Mental Capacity Assessments in Psychiatric In-Patients’ (2005) 187 British Journal of Psychiatry 372
Evans, al., ‘How Much Do Emergency Healthcare Workers Know About Capacity and Consent?’ (2007) 24 Emergency Medicine Journal 291
McCulloch, J., ‘(In)capacity Legislation in Practice’ (2009) 33 Psychiatric Bulletin 20
O'Keefe, S., ‘A Clinician's Perspective: Issues of Capacity in Care’ (2008) 14 Medico-Legal Journal of Ireland 41, 44
Teubner, G., Law as an Autopoietic System (Florence: The European University Institute Press Series, 1993)
Eastman, N. and Peay, J., ‘Law Without Enforcement: Theory and Practice’ in N. Eastman and J. Peay (eds.) Law Without Enforcement: Integrating Mental Health and Justice (Oxford: Hart Publications, 1999), pp. 21–4
Rutledge, al., ‘Functional Mental Capacity is not Independent of the Severity of Psychosis’ (2008) 31 International Journal of Law and Psychiatry 9
Kirk, T. and Bersoff, D., ‘How Many Procedural Safeguards Does it Take to Get a Psychiatrist to Leave the Lightbulb Unchanged? A Due Process Analysis of the MacArthur Treatment Competence Study’ (1996) 2 Psychology, Public Policy and Law 45, 67
Abernethy, V., ‘Judgments About Patient Competence: Cultural and Economic Antecedents’ in M. Cutter and E. Shelp (eds.) Competency: A Study of Informal Competency Determinations in Primary Care (Dordrecht: Kluwer Academic Publishers, 1991), p. 218
Manson, N. and O'Neill, O., Rethinking Informed Consent in Bioethics (Cambridge University Press, 2007), p. 56
Broverman, al., ‘Sex Role Stereotypes and Clinical Judgements of Mental Health’ (1970) 34 Journal of Consulting and Clinical Psychology 1
Chesler, P., Women and Madness (New York: Doubleday, 1972)
Showalter, E., The Female Malady: Women, Madness and English Culture: 1830–1985 (New York: Pantheon, 1985)
Stefan, S., ‘Silencing the Different Voice: Competence, Feminist Theory and Law’ (1993) 47 University of Miami Law Review 763, 772
Sherwin, S., No Longer Patient: Feminist Ethics and Health Care (Philadelphia: Temple University Press, 1992), pp. 93–4
Secker, B.Labelling Patient (In)Competence: A Feminist Analysis of Medico-Legal Discourse’ (1999) 30 Journal of Social Philosophy 295, 302
Fegan, E. and Fennell, P., ‘Feminist Perspectives on Mental Health Law’ in S. Sheldon and M. Thompson eds. Feminist Perspectives on Healthcare Law (London: Cavendish Publishing, 1998), p. 89
Alonzi, A. and Pringle, M., ‘The Mental Capacity Act 2005’ (2007) 335 British Medical Journal 898
Nicholson, al., ‘Assessing Mental Capacity: The Mental Capacity Act’ (2008) 336 British Medical Journal 322