Mentally disordered or lacking capacity? Lessons for management of serious deliberate self harm

The article 'Mentally disordered or lacking capacity' raises some
important questions in a sphere that many clinicians find confusing and
unclear. However, rather than clarifying the situation it adds to the
confusion. The title itself is misleading to suggest an either/or
relationship between capacity and mental disorder.

The article further confuses and possibly misleads while commenting
on Ms Wooltortons capacity. The author suggests that in view of her
personality disorder her ability to use or weigh the information
(therefore her capacity) may have been distorted. Such a status or
diagnosis based approach to capacity is firmly rejected by English Law.
Section 2(3) (b) of the Mental Capacity Act 2005 (MCA) clearly states that
lack of capacity cannot be established by a person's condition or
behaviour.

Ambivalence about a decision does not preclude capacity. As per
Butler-Sloss P. ambivalence is relevant to capacity ' if and only if
ambivalence genuinely strikes at the root of mental capacity of patient'
(Re B). The law takes a functional approach to capacity determination. The
general rule of English law, whatever the context, is that 'the test of
capacity is ability to understand the nature and quality of transaction'
(Sheffield City Council v E.).

The article suggest that the values are distorted (and thereby the
person lacks capacity) if someone values being thin over being alive. The
capacity determination is neither a value judgment, nor is it the judgment
of the wisdom of the decision being taken (S.1(4) MCA). The reasons for
refusal are irrelevant. As per Lord Donaldson- "It matters not whether the
reasons for refusal were rational, irrational, unknown or even
nonexistent" (Re T). This rejection of outcome based test was confirmed by
Wright J when he said 'the quality of a decision is irrelevant as long as
the person understands what he is deciding" (Masterman- Lister). The only
reason that a person with Anorexia Nervosa may be deemed to lack capacity
is if that person's disorder prevents that person from including the
impact of her actions as one of the pieces of information to be considered
when making the decision. If the person is able to do that and then
decides that the desire to be thin is worth risking the life for, the
person cannot be construed as lacking capacity. In such situation the
Mental Health Act (MHA) would be useful.

As a final criticism, the suggestion of a single legislation covering
mental and physical disorders ignores the history, philosophy and purpose
of the two legal doctrines. The MCA derives from the philosophy of patient
choice and autonomy. The MHA deals with care and treatment of the mentally
disordered, irrespective of their capacity and has evolved from criminal
justice and public health backgrounds with capacity being a footnote.

A single legislation to deal with the Physical and Mental disorders
will do one of the three things. First option is to repeal powers of the
MHA and allow involuntary treatment only when a patient looses capacity
(using the existing definition of capacity). This is not only unhelpful
but a dangerous notion. Mental disorder is a separate category of
disorders because a patient's insight, cognition and perception are the
primary casualties. There are risks to a person are to others. A large
number of cases where the MHA is used are those detained under Part-3 of
the Act in Forensic units. How would a single law that treats mental
disorder at par with physical illness deal with such cases? Presumably
such cases would be left for the criminal justice system. This would be a
step backwards and would further stigmatize mental illness.

The second option is to broaden the definition of incapacity in order
to catch majority of patients currently under MHA. This is detrimental to
patient autonomy as more people with physical illness would be caught in
this widened net. Maybe there is the third option, to have a single piece
of legislation that deals separately with patients with mental illness. It
is not clear how that would be any different than the existing legal
frameworks.

The real problem is the lack of knowledge and confusion that
surrounds the relation between the two systems. This calls for a better
training of staff. Unfortunately this article, rather than clarifying the
prevailing confusion, adds to it.

The main criticism of Wooltorton's management was the failure to have
a MHA assessment. If detained, she could have been treated under the MHA
for her overdose. The MHA allows any treatment the purpose of which is to
alleviate, or prevent worsening of, the mental disorder or one or more of
its symptoms and manifestations (S.145 (4)). Code of Practice (23.4)
gives the example of treatment of self inflicted wounds being allowed. The
Courts have interpreted the medical treatment under MHA to include
procedures ranging from blood transfusion (NHS Trust v T) to Caesarian
section (Tameside). There is no reason to believe that dialysis
necessitated by an overdose would not be included.

In an event of refusal of treatment the correct procedure would be to
try persuasion, understanding and attempting to address the reasons for
refusal and involvement of family and friends. The capacity should be
assessed using the functional test (rather than an outcome test or a
status test) outlined in S.3 of MCA. In absence of capacity, reasonable
and practicable enquiries for existence of an Advance Directive or a
Lasting Power of Attorney should be made. An Advance directive must be
tested for its validity and applicability (S.25 MCA). If a mental disorder
is suspected advice must be sought from a senior psychiatric colleague.

References

Mental Capacity Act 2005

Mental Health Act 2007

Re B (Consent to treatment: Capacity) [2002] EWHC (Fam)

Sheffield City Council v E. [2004] EWHC 2808(Fam)

Re T (Adult: Refusal of treatment) [1992] 4 All ER 649, CA.

Masterman- Lister v Jewell [2002] EWHC 417, QB

NHS Trust v T (adult patient: refusal of medical treatment) [2004]
EWHC 1279 (Fam).

Tameside and Glossop Acute Services Trust v. CH (1996) 1 F.L.R. 762.