Capacity in mental health law: Are we heading in the right direction?

The recent review by Ryan et al. (2015) provides a timely and comprehensive survey of the role of capacity assessment across Australian mental health laws. Future legislation aims to give increasing prominence to decision-making capacity as a means of upholding human rights obligations and promoting autonomy in patients subject to involuntary treatment.

The question remains as to whether capacity is a sufficiently broad and realistic construct to form the cornerstone of mental health law. Even though a person’s ability to understand, use and weigh information may all be reliably measured, there are a number of reasons why more longitudinal deficits in authentic, insightful and voluntary engagement will evade the scope of capacity assessments.

First, under new legislation, insight is explored only in so far as it pertains to the narrow parameters of the decision being tested. Ryan et al. (2015) correctly state that capacity and insight are not interchangeable and that the latter is ‘an extremely complicated phenomenon that is rarely either simply present or absent’. Indeed insight is uniquely valuable because of its nuanced complexity. Anand and Pennington-Smith (2013) note that insight is necessary for freedom of choice not only through its impact on illness awareness but also because of its role in volition and intentionality. Many of our patients are able to understand and weigh the requirement to comply at an abstract level, yet remain vulnerable to powerful biological impulses impairing compliance beyond the usual medication side effects. In the negative syndrome of schizophrenia, for example, apathy and withdrawal can erode voluntariness, widening the chasm that often separates words and actions relating to engagement. Similarly, the dysphoria resulting from the dampening effects of antipsychotics on motivational salience (Kapur, 2003) can also contribute to medication discontinuation.

Second, it is naïve to suppose that treatment decisions can be easily isolated from the influence of mental illness, particularly where the symptoms are chronic and pervasive. The landmark ruling in Re C ([1994] 1 All ER 819) that ‘C’ was competent to refuse a potentially life-saving amputation despite his delusions about ‘an international career in medicine’ (293D) and his belief that ‘death would not be caused by his foot’ (293D) emphatically placed consideration of capacity above soundness of mind. The judge deemed that C’s refusal of treatment resulted from ‘sincerely held conviction’ (294C) and that his mental processes in relation to his decision were essentially normal (295E). Nevertheless C’s decision-making was clearly ‘bound up with a mixture of non-rational and irrational reasons’ (Stauch, 1995). Although competent individuals have the right to make irrational decisions, it seems implausible that C’s pathologically grandiose values relating to his health could be so neatly divorced from the process of his decision-making, regardless of there being no clear link between his persecutory delusions and treatment refusal.

Third, because they are task and time specific, capacity assessments by definition exclude a range of historical factors such as patterns of relapse that might otherwise inform the need for coercive treatment. Ryan et al. (2015) predict that ‘Since tribunals will now be concerned with capacity at the time an order is made, it is likely that considerably fewer people will be able to be compelled to undergo community treatment under the new legislative schemes’. There will necessarily be a corresponding reduction in community treatment orders for patients with relapsing- or remitting-type illnesses who regain inter-episodic capacity. The hypothetical patient with bipolar disorder who regains capacity (but not insight) between episodes and stops her anti-manic medication is a case in point. While this sea change can be viewed as an advance for patient autonomy, many families and carers will be worried by the potential for adverse health and social consequences (Vine and Komiti, 2015). There will be a substantial cohort of patients discharged to the community who will have to be either more unwell or unwell for longer before they breach the capacity threshold, even in jurisdictions that substitute a test of best interests for ‘additional harm’ criteria. This human rights challenge to paternalism actually constrains the operation of beneficence, inhibiting the restoration of autonomy that involuntary care is intended to provide.

Capacity should remain an adjunctive rather than a threshold criterion in mental health law because mental and physical illnesses are fundamentally different. Moving away from the traditional determinants of involuntary treatment will jeopardise mental health outcomes in a significant number of patients. Capacity-centred laws will inevitably oblige the treating psychiatrist to fracture countless management decisions into ever-smaller algorithms in order to satisfy statutory requirements. This reductive and legalistic process risks becoming an end in itself, eventually obscuring the bigger clinical picture for both patient and doctor.

See Review by Ryan et al., 49(4): 324–333.