Mental Health and `Capacity´
For legal purposes, the term capacity refers to a person´s ability to make an enforceable decision for themselves, one that has legal significance. In general terms, capacity is concerned with an individual´s competence to understand the potential consequences of a personal decision as well as being able to clearly express her or his intended course of action.
To assess mental health capacity, the individual´s ability to assess and appraise various available treatment options, together with any other information relevant to their decision, is taken into account.
Capacity, plays a critical role in resolving the best means of balancing a person´s right to be able to make their own decisions with the ethical and professional obligation to protect them from harm, either from themselves or others.
This significance of capacity was effectively highlighted by Dr Mary Keys at the NUI Galway 2007 Law and Mental Health Conference, when she stated that:
“The fact of being regarded by others as having capacity to make our own decisions is what permits us to participate as fully as possible in society and what protects us from unwanted interferences with our choices, whether we have a mental disorder or not.”
In essence, `capacity´ greatly determines whether or not one is considered as a full member of society, and able to fully exercise and enjoy one´s rights.
Current legislation
The only existing legislation that directly deals with capacity and mental health, the 1871 Lunacy Act, is hopelessly out of date. The absence of contemporary capacity legislation has significant implications for mental health service users. For instance, should a person become a war of the court under this Act, s/he is barred from getting married or entering into any class of litigation unless cleared by the High Court to do so.
The non-existence of a precise and effective definition of capacity is a matter of concern for many mental health service users, particularly elderly people with dementia or those with intellectual disabilities. Their dilemma is compounded by the lack of a formal system to gauge an individual’s capacity.
According to Inclusion Ireland, the failure to introduce effective capacity legislation can cause problems for people with a mental health service issue in six different areas, namely: in accessing education; making medical decisions; managing money; voting; involvement in relationships; and testifying in court.
2008 Mental Capacity Bill
A Mental Capacity Bill was published in 2008 to facilitate the introduction of a new legislative structure that would establish an effective decision-making system for incapacitated people.
The 2008 Mental Capacity Bill was also seen as an important step towards realising Ireland’s international human rights obligations, such as the UN Convention on the Rights of Persons with Disabilities (CRPD). As Dermot Ahern, the Minister for Justice, Equality and Law Reform, acknowledged in September 2008, when discussing the Bill´s Scheme:
“Ireland signed the UN Convention on the Rights of Persons with Disabilities when it opened for signature on 30 March 2007. The Government has indicated its intention to ratify the Convention as quickly as possible and has stated that the reforms proposed in the 2008 Scheme will enable the State to meet its obligations under the UN Convention on the Rights of Persons with Disabilities, insofar as it relates to legal capacity issues.”
Despite the Minister´s declared intentions, the Mental Capacity Bill has still not been enacted.
Determining capacity/incapacity
The 2008 Mental Capacity Bill allowed for the determining of a person´s mental capacity by a court. In cases where it was decided that the individual concerned did not possess the capacity required to engage in autonomous decision-making, power would be awarded to the court to subsequently assume responsibility for their decisions.
Although this would be an improvement on the current situation, it risks impacting negatively on the rights of mental health service users, with respect to their autonomy, liberty and privacy. It is crucial that close attention is paid to how a person´s capacity is to be determined and effective safeguards instituted to protect the rights of the individuals concerned.
Of serious concern is the lack in the proposed Bill of any precise definition of what exactly individual capacity entails. For the proposed legislation to be effective, it is essential that the definition of capacity is clearly articulated to ensure transparency and equity of treatment, and the protection of mental health service users rights.
Furthermore, effective and enforceable protections must be instituted to guarantee that those assessed as incapacitated are subject to the minimum of interference in their lives and are free from arbitrary or unjustifiable interventions.
Judicial approach
A number of bodies, such as the College of Psychiatry of Ireland, have expressed concern that there is an over-emphasis on the judicial aspect of capacity with insufficient attention being paid to the clinical setting. Prof Harry Kennedy, one of the lead authors of its submission paper regarding the Bill, contends that the proposed legislation seemed “at every point… to place the legal system at the centre of patient care and welfare. In many ways, issues of capacity that arise in day-to-day cases and clinical practice are not dealt with.” This issue is aggravated by an emphasis on long-term incapacity to the detriment of short-term incapacity.
Prof Kennedy argues that a Mental Capacity Bill should cover three areas of decision-making, namely “welfare, financial affairs and decisions regarding the person (health matters)”, with proper attention being paid to both temporary and longer term incapacity. Finally, any proposed mental capacity legislation must tackle the thorny question of “emergency intervention in life-threatening situations, urgent interventions to relieve suffering or preserve dignity and for elective interventions”.
Allocation of resources
In addition to outlining a transparent and appropriate capacity test to assess an individual’s capacity, adequate attention must be paid to the training and expertise of those engaged in its implementation. An independent monitoring and review system should also be established to ensure capacity tests are effectively and fairly implemented.
These activities will however necessitate relatively substantial transitional investment in delivering the required capacity building support for those personnel involved in managing, implementing and evaluating any new procedures and practices introduced under new capacity legislation. Given the impossibility, even during the `Celtic Tiger´ period, of obtaining adequate funding for mental health services, this will undoubtedly prove to be a major obstacle to ensuring the successful realisation of capacity legislation in Ireland.
Conclusion
Capacity legislation should provide the mental health services with the required authority to provide suitable and legally sanctioned treatment for patients lacking the required capacity to give consent. Above all, however, it is imperative that future Irish capacity legislation provides a responsive and accountable structure that will guarantee to the greatest extent possible the safety, security, needs and well-being of individuals regarded as incapacitated.
This piece was co-authored by Justin Frewen and Dr Anna Datta. A version of the article appeared in the Irish Medical Times
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