Abstract
Decision-making capacity is a vital concept in law, ethics, and clinical practice. Two legal cases where capacity literally had life and death significance are NHS Trust v Ms T [2004] and Kings College Hospital v C [2015]. These cases share another feature: unusual beliefs. This essay will critically assess the concept of capacity, particularly in relation to the unusual beliefs in these cases. Firstly, the interface between capacity and unusual beliefs will be examined. This will show that the “using and weighing of information” is the pivotal element in assessment. Next, this essay will explore the relationship between capacity assessment and a decision’s “rationality.” Then, in light of these findings, the essay will appraise the judgments in NHS v T and Kings v C, and consider these judgments’ implications. More broadly, this essay asks: Does capacity assessment examine only the decision-making process (as the law states), or is it also influenced by a decision’s rationality? If influenced by rationality, capacity assessment has the potential to become “a search and disable policy aimed at those who are differently orientated in the human life-world” (Gillett 2012, 233). In contentious cases like these, this potential deserves attention.
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Notes
The term “capacity” in this essay is used as synonymous with “competence.”
“Unusual beliefs” may be read literally. It is used to cover a spectrum of beliefs ranging from severely unusual and pathological at one extreme (delusions by psychiatric definition), to mildly and only statistically unusual at the other.
In addition to its standard criteria, the MCA s 2(1) also requires a relevant “impairment of, or a disturbance in the functioning of, the mind or brain” for a finding of incapacity, but this is for its own specific legal purpose and does not apply generally (and is not determinative in the two cases examined in this essay).
MCA s 3(1)(c): a person is unable to make a decision for themselves if unable “to use or weigh that information as part of the process of making the decision”. NHS v T predates the MCA, but the same criteria was appropriately applied.
This challenges, for example, the MCA Code of Practice, which states: “An assessment that a person lacks capacity … must never be based simply on: their age, their appearance, [or] assumptions about their condition” (at 4.7).
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Hyslop, B. Decision-Making Capacity and Unusual Beliefs: Two Contentious Cases. Bioethical Inquiry 14, 439–444 (2017). https://doi.org/10.1007/s11673-017-9795-8
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DOI: https://doi.org/10.1007/s11673-017-9795-8