We agree with the premise of Doyal and Sheather’s assertion that
mental health legislation should respect decision-making capacity (1),
because patients suffering from a mental disorder should not be
discriminated against. However, the current legal test of capacity and the
criteria of capacity in the forthcoming Mental Capacity Act in England and
Wales largely focus on the intellectual and cognitive abilities of the
patient. This legal concept of capacity is insensitive to some of the
subtle and complex ways in which mental disorders can affect capacity.
Our ongoing research with anorexia nervosa suggests that there are
difficulties in using the current criteria of capacity to determine
whether compulsory treatment should be used in this disorder. These
current legal criteria fail to capture the range of complex difficulties
affecting decision-making, such as shifts in values and changes in the
sense of personal identity (2, 3).
Patients themselves support the use of compulsory treatment,
particularly to save life, despite finding the experience painful (4).
However, capacity is not the main factor in determining whether patients
feel they benefit from compulsory treatment. Instead, respect from
professionals, trust in professionals and the context are all important in
determining whether compulsory treatment is experienced as helpful and
appropriate (4, 5).
Our research leads us to believe that if capacity in its current form
were to be introduced into mental health legislation, there would be
problems encountered when it is applied to some mental disorders. There is
a danger that when the current notion of capacity is used to determine
whether to apply compulsory treatment, some patients who have real
difficulties with making treatment decisions may be falsely judged as
possessing capacity. There is a risk that a capacity-based act will leave
such patients at risk of “dying with their rights on”.
References:
1.Doyal L, Sheather J. Mental health legislation should respect
decision making capacity. Bmj 2005;331(7530):1467-9.
2.Tan J, Hope T, Stewart A. Competence to refuse treatment in
anorexia nervosa. Int J Law Psychiatry 2003;26(6):697-707.
3.Tan JO, Hope T, Stewart A. Anorexia nervosa and personal identity:
The accounts of patients and their parents. Int J Law Psychiatry
2003;26(5):533-48.
4.Tan JO, Hope T, Stewart A, Fitzpatrick R. Control and compulsory
treatment in anorexia nervosa: the views of patients and parents. Int J
Law Psychiatry 2003;26(6):627-45.
5.Tan JOA, Hope T, Stewart A, Fitzpatrick R. Competence to make
treatment decisions in anorexia nervosa: thinking processes and values.
Philosophy, Psychology and Psychiatry In press.
Competing interests:
None declared
Competing interests:
No competing interests
21 December 2005
Jacinta OA Tan
Wellcome Trust Research Fellow and Honorary Consultant Child and Adolescent Psychiatrist
Tony Hope
The Ethox Centre, University of Oxford Old Road Campus, Old Road, Headington, Oxford OX3 7LF
Rapid Response:
Capacity is more complex than it looks
Sir,
We agree with the premise of Doyal and Sheather’s assertion that
mental health legislation should respect decision-making capacity (1),
because patients suffering from a mental disorder should not be
discriminated against. However, the current legal test of capacity and the
criteria of capacity in the forthcoming Mental Capacity Act in England and
Wales largely focus on the intellectual and cognitive abilities of the
patient. This legal concept of capacity is insensitive to some of the
subtle and complex ways in which mental disorders can affect capacity.
Our ongoing research with anorexia nervosa suggests that there are
difficulties in using the current criteria of capacity to determine
whether compulsory treatment should be used in this disorder. These
current legal criteria fail to capture the range of complex difficulties
affecting decision-making, such as shifts in values and changes in the
sense of personal identity (2, 3).
Patients themselves support the use of compulsory treatment,
particularly to save life, despite finding the experience painful (4).
However, capacity is not the main factor in determining whether patients
feel they benefit from compulsory treatment. Instead, respect from
professionals, trust in professionals and the context are all important in
determining whether compulsory treatment is experienced as helpful and
appropriate (4, 5).
Our research leads us to believe that if capacity in its current form
were to be introduced into mental health legislation, there would be
problems encountered when it is applied to some mental disorders. There is
a danger that when the current notion of capacity is used to determine
whether to apply compulsory treatment, some patients who have real
difficulties with making treatment decisions may be falsely judged as
possessing capacity. There is a risk that a capacity-based act will leave
such patients at risk of “dying with their rights on”.
References:
1.Doyal L, Sheather J. Mental health legislation should respect
decision making capacity. Bmj 2005;331(7530):1467-9.
2.Tan J, Hope T, Stewart A. Competence to refuse treatment in
anorexia nervosa. Int J Law Psychiatry 2003;26(6):697-707.
3.Tan JO, Hope T, Stewart A. Anorexia nervosa and personal identity:
The accounts of patients and their parents. Int J Law Psychiatry
2003;26(5):533-48.
4.Tan JO, Hope T, Stewart A, Fitzpatrick R. Control and compulsory
treatment in anorexia nervosa: the views of patients and parents. Int J
Law Psychiatry 2003;26(6):627-45.
5.Tan JOA, Hope T, Stewart A, Fitzpatrick R. Competence to make
treatment decisions in anorexia nervosa: thinking processes and values.
Philosophy, Psychology and Psychiatry In press.
Competing interests:
None declared
Competing interests: No competing interests