What it is like to be manic: a response to Director.

In a recent article, Director makes the case that many individuals with bipolar disorder have the capacity to consent to many decisions while acutely manic, even when those decisions are out of character and cause harm. Referring to recent qualitative evidence, I argue that Director overlooks a key mechanism of manic incapacity, an inflexible experience of the future that impairs one's ability to value. Without attention to the illness-specific experience of decision-making, capacity assessments risk false negatives in people with mania.

Shades of grey: choice, control and capacity in alcohol-related brain damage.

Liaison psychiatrists have identified that conducting capacity assessments in general hospital patients with alcohol-related brain damage (ARBD) can be challenging. This educational article uses the fictitious case of a man with ARBD, alcohol dependence and significant self-neglect, focusing on assessment of his capacity to decide about moving into a care home on discharge. We provide an overview of clinical, legal and ethical literature relevant to decision-making and capacity assessment in individuals with ARBD, with the aim of guiding clinicians approaching complex capacity assessments.

Interpersonal influences on decision-making capacity: a content analysis of court judgments.

For many purposes in England and Wales, the Court of Protection determines whether a person has or lacks capacity to make a decision, by applying the test within the Mental Capacity Act 2005. This test is regularly described as a cognitive test with cognitive processes discussed as internal characteristics. However, it is unclear how the courts have framed interpersonal influence as negatively impacting upon a person's decision-making processes in a capacity assessment context. We reviewed published court judgments in England and Wales in which interpersonal problems were discussed as relevant to capacity. Through content analysis, we developed a typology that highlights five ways the courts considered influence to be problematic to capacity across these cases. Interpersonal influence problems were constructed as (i) P's inability to preserve their free will or independence, (ii) restricting P's perspective, (iii) valuing or dependence on a relationship, (iv) acting on a general suggestibility to influence, or (v) P denying facts about the relationship. These supposed mechanisms of interpersonal influence problems are poorly understood and clearly merit further consideration. Our typology and case discussion are a start towards more detailed practice guidelines, and raise questions as to whether mental capacity and influence should remain legally distinct.

Mental capacity-why look for a paradigm shift?

Challenges to the legitimacy of mental capacity over the past 10 years have been spearheaded by the Committee on the Rights of Persons with Disabilities, the treaty body for the UN Convention on the Rights of Persons with Disabilities (CRPD). This challenge has been asserted to have produced a 'paradigm shift'. In this article, we examine why that interpretation has had such limited traction in the legal policy arena, and whether it should have traction. We also analyse whether the Committee has subtly but importantly shifted its position. We then develop an argument that the true goal, compatible with the CRPD, is the satisfactory determination of whether a person has or lacks mental capacity to make or take a relevant decision. Our article contextualises multi-disciplinary, research-informed guidelines designed as a contribution to satisfactory determination. While our article is based upon the position in England and Wales, we suggest that our conclusions are of wider application.

Difficult Capacity Cases-The Experience of Liaison Psychiatrists. An Interview Study Across Three Jurisdictions.

Background: Assessment of capacity for treatment and discharge decisions is common in the general hospital. Liaison psychiatrists are often asked to support the treating medical or surgical team in difficult capacity assessments. However, empirical research on identification and resolution of difficult capacity cases is limited. Some studies have identified certain patient, decisional, and interpersonal factors which cause difficulty, but no study has explored how these issues are resolved in practice. Our study therefore aimed to describe how experienced liaison psychiatrists identify and resolve difficult capacity cases in a general hospital setting. Methods: We carried out semi-structured interviews with 26 liaison psychiatrists from England, Scotland, and New Zealand, on their most difficult capacity cases. Thematic analysis was used to examine types of difficulty and how these were resolved in practice. Summaries were prepared and example quotes extracted to illustrate phenomena described. Results: We identified four types of difficulty in capacity assessment, spanning both clinical and ethical domains: 1) Difficulty determining whether the decision is the patient's own or driven by illness, 2) Difficulty in applying ethical principles, 3) Difficulty in avoiding personal bias, and 4) Procedural difficulties. The liaison psychiatrists presented as self-reflective and aware of challenges and pitfalls in hard cases. We summarized their creative strategies to resolve difficulty in assessment. Conclusion: Practitioners approaching difficult capacity cases require both clinical skills, e.g., to uncover subtle illness impairing decision-making and to consider interpersonal dynamics, and ethical skills, e.g., to negotiate the role of values and risks in capacity assessment. Education and training programmes should incorporate both aspects and could include the resolution strategies identified in our study. Practitioners, supported by health and social care systems, should work to develop self-aware and reflective capacity assessment practice.

Broad concepts and messy realities: optimising the application of mental capacity criteria.

Most jurisdictions require that a mental capacity assessment be conducted using a functional model whose definition includes several abilities. In England and Wales and in increasing number of countries, the law requires a person be able to understand, to retain, to use or weigh relevant information and to communicate one's decision. But interpreting and applying broad and vague criteria, such as the ability 'to use or weigh' to a diverse range of presentations is challenging. By examining actual court judgements of capacity, we previously developed a descriptive typology of justifications (rationales) used in the application of the Mental Capacity Act (MCA) criteria. We here critically optimise this typology by showing how clear definitions-and thus boundaries-between the criteria can be achieved if the 'understanding' criterion is used narrowly and the multiple rationales that fall under the ability to 'use or weigh' are specifically enumerated in practice. Such a typology-aided practice, in theory, could make functional capacity assessments more transparent, accountable, reliable and valid. It may also help to create targeted supports for decision making by the vulnerable. We also discuss how the typology could evolve legally and scientifically, and how it lays the groundwork for clinical research on the abilities enumerated by the MCA.

Applying decision-making capacity criteria in practice: A content analysis of court judgments.

BACKGROUND/OBJECTIVES: Many jurisdictions use a functional model of capacity with similar legal criteria, but there is a lack of agreed understanding as to how to apply these criteria in practice. We aimed to develop a typology of capacity rationales to describe court practice in making capacity determinations and to guide professionals approaching capacity assessments. METHODS: We analysed all published cases from courts in England and Wales [Court of Protection (CoP) judgments, or Court of Appeal cases from the CoP] containing rationales for incapacity or intact capacity(n = 131). Qualitative content analysis was used to develop a typology of capacity rationales or abilities. Relationships between the typology and legal criteria for capacity [Mental Capacity Act (MCA)] and diagnoses were analysed. RESULTS: The typology had nine categories (reliability: kappa = 0.63): 1) to grasp information or concepts, 2) to imagine/ abstract, 3) to remember, 4) to appreciate, 5) to value/ care, 6) to think through the decision non-impulsively, 7) to reason, 8) to give coherent reasons, and 9) to express a stable preference. Rationales most frequently linked to MCA criterion 'understand' were ability to grasp information or concepts (43%) or to appreciate (42%), and to MCA criterion 'use or weigh' were abilities to appreciate (45%) or to reason (32%). Appreciation was the most frequently cited rationale across all diagnoses. Judges often used rationales without linking them specifically to any MCA criteria (42%). CONCLUSIONS: A new typology of rationales could bridge the gap between legal criteria for decision-making capacity and phenomena encountered in practice, increase reliability and transparency of assessments, and provide targets for decision-making support.

Taking capacity seriously? Ten years of mental capacity disputes before England's Court of Protection.

Most of the late 20th century wave of reforms in mental capacity or competence law were predicated upon the so-called 'functional' model of mental capacity, asking not merely whether a person had a mental disorder or disability but rather whether they were capable of making a specific decision (or decisions) at a specific point of time. This model is now under sustained challenge, most notably from the Committee on the Rights of Persons with Disabilities, and this challenge has focused a spotlight on the difficulty of applying the legally 'neat' concepts of the functional model of mental capacity across the full complex spectrum of human life. This paper presents a review, in two parts, of the first ten years of the Court of Protection, a specialist mental capacity court in England and Wales which applies a functional model of mental capacity. The first part outlines the history of the functional model in England and Wales, and the development of this specialist mental capacity court (Court of Protection), created by the Mental Capacity Act 2005. The second part presents an empirical and case-based study of 40 published cases of capacity disputes presented to the Court of Protection, or to the Court of Appeal on appeal from the Court of Protection, during the first ten years of its existence. The authors found that in 70% of cases the subject of proceedings (or P) had either a learning disability or dementia, and the court ruled on P's capacity for a wide range of issues, most commonly residence, care and contact. The judge considered the support principle, or whether practical steps were taken to maximise P's capacity, in 23 of 40 (57.5%) cases. The subject P was determined to have capacity in 13 cases, to lack capacity in 22 cases, and in 5 cases P was found to have and lack capacity for different issues before the court. The functional inability to use or weigh relevant information was most commonly cited by the judge, being cited in all but 2 cases in which P was determined to lack capacity and inabilities were cited. The propensity for the system to learn was shown by an increase in the proportion of cases which considered the 'causative nexus' from 2013, when a Court of Appeal case emphasised that impairment must not merely be present alongside functional inability but must be the causal basis of inability. The authors conclude that whilst the Court of Protection is still on a learning curve, its work provides a powerful illustration of what taking capacity seriously looks like, both inside and outside the courtroom. The implications for judges, lawyers and psychiatrists that can be drawn from the study are generalisable to other comparable socio-legal frameworks in which mental capacity or competence plays a role and is likely to do so for the foreseeable future.

Ulysses in the United Kingdom: Difficulties with a capacity-based justification for self-binding in bipolar disorder.

There has been a recent proposal by Gergel and Owen for introduction of legally enforceable self-binding directives for persons with bipolar affective disorder in the United Kingdom. The model is rooted in presence or absence of decision-making capacity, and the notion of capacity used is an expansion of the usual notion of capacity, in that it is individualized and diachronic. In this article, I argue that an individualized notion of capacity either lacks a coherent foundation or exposes itself to a situation where epistemological error results in a double standard or unjustified enforcement of the directive. I also raise concern that the diachronic notion of capacity leads to an authenticity type account, which fails to incorporate differences in individual prognosis. I then present a rough sketch of an alternative account, more in keeping with current mental health legislation, which uses an individualized notion of "risk to self" to justify self-binding directives in bipolar disorder.