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.