Abstract
Most of the late 20th century wave of reforms in mental capacity or competence law were predicated upon the so-called ‘functional’ model of mental capacity, asking not merely whether a person had a mental disorder or disability but rather whether they were capable of making a specific decision (or decisions) at a specific point of time. This model is now under sustained challenge, most notably from the Committee on the Rights of Persons with Disabilities, and this challenge has focused a spotlight on the difficulty of applying the legally ‘neat’ concepts of the functional model of mental capacity across the full complex spectrum of human life.This paper presents a review, in two parts, of the first ten years of the Court of Protection, a specialist mental capacity court in England and Wales which applies a functional model of mental capacity.The first part outlines the history of the functional model in England and Wales, and the development of this specialist mental capacity court (Court of Protection), created by the Mental Capacity Act 2005. The second part presents an empirical and case-based study of 40 published cases of capacity disputes presented to the Court of Protection, or to the Court of Appeal on appeal from the Court of Protection, during the first ten years of its existence.The authors found that in 70% of cases the subject of proceedings (or P) had either a learning disability or dementia, and the court ruled on P's capacity for a wide range of issues, most commonly residence, care and contact. The judge considered the support principle, or whether practical steps were taken to maximise P's capacity, in 23 of 40 (57.5%) cases. The subject P was determined to have capacity in 13 cases, to lack capacity in 22 cases, and in 5 cases P was found to have and lack capacity for different issues before the court. The functional inability to use or weigh relevant information was most commonly cited by the judge, being cited in all but 2 cases in which P was determined to lack capacity and inabilities were cited. The propensity for the system to learn was shown by an increase in the proportion of cases which considered the ‘causative nexus’ from 2013, when a Court of Appeal case emphasised that impairment must not merely be present alongside functional inability but must be the causal basis of inability.The authors conclude that whilst the Court of Protection is still on a learning curve, its work provides a powerful illustration of what taking capacity seriously looks like, both inside and outside the courtroom. The implications for judges, lawyers and psychiatrists that can be drawn from the study are generalisable to other comparable socio-legal frameworks in which mental capacity or competence plays a role and is likely to do so for the foreseeable future.
Highlights
The concept of mental capacity, as it is called in England and Wales and sometimes referred to as mental competence, decision-making capacity, etc., is familiar in many jurisdictions, in particular to allow those in the caring professions to answer the question “do I obtain consent from this individual?” Most of the late 20th century wave of legal reforms in this area saw an increased focus upon the idea that mental capacity is time- and decision-specific, in other words (1) that anyone, at any time, may lack mental capacity to make a decision
When it comes to the impact of mental state upon legal capacity, English common law has long had a basic test, to the effect the person concerned had at the relevant time to understand in broad terms what they were doing and the likely effects of their action: a useful overview of the common law in this area as it stood at the start of the reform process in England & Wales can be found in the Law Commission's, 1991 report (Law Commission, 1991, para 2.9–2.42)
Most socio-legal structures will for the foreseeable future continue to depend upon some formulation of mental capacity as an element of legal capacity,70 even if, in time, the focus is directed more upon the support that the individual may require to overcome the relevant impairment to exercise their legal capacity
Summary
The concept of mental capacity, as it is called in England and Wales and sometimes referred to as mental competence, decision-making capacity, etc., is familiar in many jurisdictions, in particular to allow those in the caring professions to answer the question “do I obtain consent from this individual?” Most of the late 20th century wave of legal reforms in this area saw an increased focus upon the idea that mental capacity is time- and decision-specific, in other words (1) that anyone, at any time, may lack mental capacity to make a decision (forInternational Journal of Law and Psychiatry 62 (2019) 56–76 instance in the immediate aftermath of an accident); and (2) those with permanent impairments of their mind or brain may well be capable of making decisions in relation to one area of their life even if they are not capable of doing so in relation to others. Starting in 1989, and in part reflecting broader trends in many Western European and Commonwealth countries, and in part a general unease in England and Wales as to whether the common law doctrine of necessity provided a suitable framework for the delivery of medical treatment to those unable to consent to it, the Law Commission undertook an extensive reform exercise of the law in this area (Law Commission, 1991, 1993, 1995) When it came to the concept of capacity, the project both influenced and was influenced by the important case of Re C (Refusal of Medical Treatment) [1994] 1 WLR 290, in which Thorpe J had to decide the definition of capacity which enabled an individual to refuse treatment. He rejected the “minimal competence” test advanced on behalf of the psychiatric patient seeking an injunction to prevent the hospital where he was a patient from amputating his gangrenous leg without his consent, holding that he required more than the capacity to understand in broad terms the
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