Decisional capacity and the law – the view of a mental health cop

This is from the blog of an award-winning mental health focused police officer. It makes clear the position of the law with regard to offending and mental health, but more than that it clarifies the matter of capacity itself which is that, if you have it, your decision doesn’t have to be logical or conform to any norms.

Most of us reject healthcare guidance to one extent or another, whether that is because we eat too much, drink too much or exercise too little. I’d be genuinely interested to know how many adults of working age could say they moderate alcohol within Government guidelines, whilst taking the relevant amount of exercise, eating their Five-a-Day portions of fruit and vegetables within the recommended calorie limit, etc., etc.. We recognise that our autonomy allows us to reject advice because most of us do on at least one of those areas, even where the advice is based on the best available medical and scientific evidence.

But here’s the legal nugget of this post: an unwise, even stupid decision can still be lawful – a person does not lack capacity by virtue of wanting to behave in a reckless or dangerous manner with regard to their own health. You want to stop taking medication, or walk out of A&E before treatment is completed; you want to decline an ambulance trip to hospital after you fell – all of this is a matter for you, not me … subject to those caveats of whether you have capacity to take your decision; and whether your behaviour amounts to an offence which is impacting upon the rights and safety of others. [bold text added].

From Mental Health Cop – a venn diagram of policing, mental health, and criminal justice

In other words, capacity isn’t defined by whether or not someone’s decision is consistent with what might be regarded as ‘reasonable’, it’s defined by the process the person used to arrive at it. For the most of us, explaining that process isn’t problematic, but for a few – those with cognitive challenges or limitations – this can be very difficult. Often it’s left to professionals to establish capacity by interviewing people with vulnerabilities, a process that in itself can introduce bias and distortion if great care isn’t taken. Leading and closed questions, an inflexible agenda that skips from topic to topic, interruptions, failure to allow the person to give their own account unimpeded – all of these can give rise to an inaccurate conclusion about capacity. Sometimes this is ‘in favour’ of a person who has convinced the interviewer by agreeing with statements or offering superficially competent answers that have no real content, other times the reverse when a competent person is intimidated by factors such as speed of questioning, complexity of language, fear of failure into saying little to nothing.

My colleague and I have conducted many  capacity interviews using a more supportive technique based on the cognitive interview. You can find more details elsewhere on this site; all the resources are free to use.



Almost there

Looks like we have all the furniture in place, which wasn’t a given as some seemed to have got lost in transit. Turned out it was actually just hidden under a pile of old packaging and needed hauling back up to the surface for air! Next step, our proper address which shouldn’t be long.

We’ve already had visitors to whom we say sorry that the place wasn’t fully open, we hope you’ll come back now everything is labelled and ready for inspection.

Suzanne Conboy-Hill

We’re moving house!

After some years on a traditional website, we’re on the move. While the traditional platform is stable and reliable, it isn’t very responsive. Updating is more complicated than things need to be, and conversations there are impossible. WordPress is a different animal; an agile one that sometimes doesn’t behave the way you expect but always delivers flexibility and a capacity to respond. We’ll be bringing the domain name over shortly.

You may find some missing links; bear with us, we’ll find them and put them back. Some couldn’t be applied until the site went live so watch out for potholes!

I sincerely hope you find this site useful. It’s based on many years training and experience working with adults whose capacity to give consent to their own treatment has so frequently been denied them. The interview protocol is based on the Cognitive Interview (references elsewhere on the site) and has been tested in Courts of Law with positive outcomes.

All the resources are free to access and use. None of them will compromise the paperwork any professional is obliged to use for capacity assessments; they will help them complete that paperwork with information that is more reliable, more accurate, and more representative of the voice of the interviewee than other techniques can allow.

Good luck – let us know how it goes!

Dr Suzanne Conboy-Hill