test of capacity has little practical benefit

BMJ 2005; 331 doi: (Published 15 December 2005) Cite this as: BMJ 2005;331:1469
  1. Derek Chiswick, consultant forensic psychiatrist (
  1. 1 Orchard Clinic, Royal Edinburgh Hospital, Edinburgh EH10 5HF

    In a civilised society mental health laws protect insight-less seriously mentally ill people from themselves and protect citizens from the actions of those who are seriously mentally ill. These principles have been the cornerstone of mental health law for 50 years. But legislation must be fit for today. It should embrace contemporary concern for patient autonomy but at the same time deliver what society requires of it. Should decision making capacity have a place in modern mental health law?1 Of course it should. Should capacity be the over-riding factor that trumps all other considerations as it does with physical illness? That goes too far.

    Capacity has not earned this pivotal status in routine clinical psychiatry for four reasons: it is a poorly defined concept; it is consequently difficult to assess; its assessment adds little of practical benefit when considering the clinical grounds for compulsory treatment; and its alleged presence will be used as a convenient device to legitimise rejection and delay in the treatment of mentally ill patients.

    Definition and assessment

    Capacity is a shaky concept in psychiatry. Scottish legislators opted instead for “decision making ability.”2 It …

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