A third way on capacity

Ideas about mental capacity have evolved in the past 10 years.
Then, it was usual to talk about mentally incapacitated adults; now
there is a presumption of capacity. In the first draft of the
Mental Capacity Bill there was too much about enabling families and
professionals to make decisions for others and too little about
supporting individuals to decide for themselves. This too has
changed in the second draft of the bill.

Or, rather, it has begun to change. Of course there is an
inevitable paradox in the suggestion that people who lack mental
capacity should be helped to decide for themselves. It may be
precisely the inability to decide for themselves that led to the
diagnosis of incapacity in the first place. But it also has to be
recognised that the boundary between capacity and incapacity is
blurred and that even in the most difficult cases it is possible
for a skilled advocate to divine the wishes and interests of the
In the Bournewood judgement, the European Court of Human Rights
ruled that doctors had been wrong to detain under common law Mr L,
an autistic man in his fifties and unable to speak. At present the
only alternative method of detention for Mr L and thousands like
him is sectioning under the Mental Health Act 1983, though the
legislation was never intended for this group of patients. The
Mental Capacity Bill is supposed to offer a way out, but it is
likely to do so at the expense of some of the best features of the
mental health legislation.

The bill makes advocacy inaccessible and inadequate. And when
“independent consultees” can be appointed to act for
someone who lacks capacity, their role is to take an impartial view
of the patient’s “best interests” rather than
take sides in expressing the patient’s wishes and desires.
The remotely located court of protection, the final arbiter of the
patient’s best interests, will be difficult to set in motion
and even more difficult to get to.

In this respect, the framers of the bill could have learned from
the Mental Health Bill, which provides safeguards in the form of
tribunals and genuine advocacy. The Mental Capacity Bill is still a
chance to put on a sound footing the rights of people who lack
capacity but, if it is to achieve its potential, the government
must be willing to compromise.

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