Section 2 of the Mental Capacity Act should be unnecessary

Section 2 of the Mental Capacity Act should be unnecessary

I had never considered section 2(1) of the MCA as being of any significance – to me, all it is saying, is that thinking, whether perfect, flawed or indifferent, takes place within the brain. But some lawyers have told me that they consider section 2 to be fundamental to the MCA – one of the lawyers wrote:

‘Basically, if you remove the diagnostic threshold, you MASSIVELY expand the scope of the MCA, to include huge chunks of the population, without any kind of recognised mental disability at all, in ways that the public would probably have strong views about.’

So, I’ve been thinking about this, and the PDF you can download is the analysis I’ve come up with.

Often, the lack of mental capacity to make a decision, will arise because of something such as a psychotic mental condition – and, of course, we regard psychiatrists as the experts in such things. But – IMPORTANTLY – the requirement of the MCA is not ‘does the person have a psychiatric diagnosis?’. The requirement of the MCA is, in such a situation, ‘does the person’s psychiatric diagnosis result in the person being unable to make a particular decision for themselves?’. As I pointed out in the PDF, on page 3:

‘If you consider and assert that a person lacks the mental capacity to make a decision, then you need to justify why you believe that. It is possible that you might involve a psychiatrist. But, you don’t – or at least should not – ask the psychiatrist ‘do you consider the person has got a psychiatric diagnosis?’. You ask the psychiatrist ‘do you consider the person lacks the mental capacity to make the decision?’.

That question, points the psychiatrist back into considering section 3(1) of the MCA. And, it is not the psychiatrist who needs to believe and justify a conclusion that the person lacks the mental capacity to make the decision: it is you, because the reason why you are considering the person’s mental capacity, is that you are involved in the situation in such a way that you might need to call on the defences provided by the MCA if you intervene [or decide to not intervene] without the person’s consent.’

As I pointed out at the end of my PDF:

‘It makes it clearer, if we re-present section 3(1) as:

3(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable—

(a) to understand the options and outcomes of the decision,
(b) to retain the options and outcomes,
(c) to think about the options and outcomes as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).

Two things which [individually] can point towards an assessment that the person is not mentally capable to make the decision:

The option which the person has chosen, does not fit with the person’s known objective;

The person does not accept ‘empirically proven’ outcomes of options.

And, this is also something which can be relevant:

An unshakeable belief which is inconsistent with empirical experience of the world.

And, developing something I wrote on pages 9 and 10, I am asserting that:

If we can apply the ‘functional test’ of 3(1) correctly, then that will automatically connect our conclusions about capacity and incapacity to the actual decision being considered in a way which is NOT true for a ‘psychiatric diagnosis’. And, as we investigate both 3(1) and also psychiatric conditions by means of the same tools - observation, listening, asking questions and [if the questions are answered] listening to answers – then it is a plausible ‘Ansätz’ to suggest that if we can refine how we apply a functional test, then we do not need to subsequently also apply a ‘diagnostic test’ when we use the same tools, and gather the same ‘evidence’, for both of those tests.’

As usual, feedback on the PDF is very welcome.