The Use of Neuroscience and Psychological Measurement in England's Court of Protection.

Andrew McWilliams,Anthony S David,Stephen M Fleming,Gareth Owen

doi:10.3389/fpsyt.2020.570709

Abstract

The 2005 Mental Capacity Act of England and Wales provides a description in statute law of a test determining if a person lacks “mental capacity” to take a particular decision and describes how the “best interests” of such a person should be determined. The Act established a new Court of Protection (CoP) to hear cases related to the Act and to rule on disputes over mental capacity. The court gathers a range of evidence, including reports from clinicians and experts. Human rights organisations and others have raised concerns about the nature of assessments for incapacity, including the role of brain investigations and psychometric tests.Aim: Describe use and interpretation of structured measures of psychological and brain function in CoP cases, to facilitate standardisation and improvement of practices, both in the courtroom and in non-legal settings.Method: Quantitative review of case law using all CoP judgments published until 2019. The judgments (n = 408) were read to generate a subset referring to structured testing (n = 50). These were then examined in detail to extract the nature of the measurements, circumstances of their use and features of interpretation by the court.Results: The 408 judgments contained 146 references to structured measurement of psychological or brain function, spread over 50 cases. 120/146 (82.2%) referred to “impairment of mind or brain,” with this being part of assessment for incapacity in 58/146 (39.7%). Measurement referred on 25/146 (17.1%) occasions to “functional decision-making abilities.” Structured measures were used most commonly by psychiatrists and psychologists. Psychological measurements comprised 66.4% of measures. Neuroimaging and electrophysiology were presented for diagnostic purposes only. A small number of behavioural measures were used for people with disorders of consciousness. When assessing incapacity, IQ and the Mini-Mental-State Examination were the commonest measures. A standardised measure of mental capacity itself was employed just once. Judges rarely integrated measurements in their capacity determinations.Conclusion: Structured testing of brain and psychological function is used in limited ways in the Court of Protection. Whilst there are challenges in creating measures of capacity, we highlight an opportunity for the neuroscience community to improve objectivity in assessment, inside and outside the courtroom.

Highlights

The Court of Protection (CoP) of England and Wales was established in its current form as a specialised court dealing with matters arising from the Mental Capacity Act 2005 (MCA 2005)1
The Act is distinctive for several reasons, not least in that it begins with five overarching principles: [1] there is a presumption that any person has capacity, so the job of an assessor is to establish if this presumption should be displaced; [2] all practicable steps must be taken to help P make a decision for themselves; [3] people who have mental capacity may make choices which others see as unwise; [4] decisions taken on behalf of people who lack capacity must be taken in their best interests; and [5] decisions must only be taken on behalf of people if there is no less restrictive way of achieving the desired aim
Ruled in opposition to evidence which used measurement measurements flexibly, deviating from their standardised modes of operationalisation. Whilst this adaptive use might have some benefits, it risked introducing variability. This quantitative review of published judgments shows the different types of structured measurement of psychological and brain function presented to, and used by, the Court of Protection—a specialised court dealing with mental capacity and best interests

Summary

Introduction

The Court of Protection (CoP) of England and Wales was established in its current form as a specialised court dealing with matters arising from the Mental Capacity Act 2005 (MCA 2005). The Act is distinctive for several reasons, not least in that it begins with five overarching principles: [1] there is a presumption that any person (referred to as “P” in the court) has capacity, so the job of an assessor is to establish if this presumption should be displaced; [2] all practicable steps must be taken to help P make a decision for themselves; [3] people who have mental capacity may make choices which others see as unwise; [4] decisions taken on behalf of people who lack capacity must be taken in their best interests; and [5] decisions must only be taken on behalf of people if there is no less restrictive way of achieving the desired aim. Capacity is not globally present or absent for any P, but is tied to the moment in time at which a decision is being taken and to the content of that decision, such as a specific choice about healthcare, finances or residence

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