Capacity in mental health law: We are heading in the right direction

In a commentary inspired by our recent guide to assessing decision-making capacity, D’Abrera argues that the absence of decision-making capacity should not be a threshold criterion for unconsented treatment in mental illness as it is in physical illness (D’Abrera, 2015; Ryan et al., 2015).

D’Abrera’s main concern is that ‘mental and physical illnesses are fundamentally different’ and that although the presence or absence of capacity serves well as a ‘cornerstone’ of the law in relation to the right to refuse treatment in physical illness, it is not ‘sufficiently broad and realistic’ to play the same role in regard to mental illness.

To illustrate his point, D’Abrera adopts an example raised in our paper – a young woman with severe recurrent bipolar disorder, who, when well and able to understand and weigh the information relevant to a recommendation to take mood stabilisers, nonetheless opts to try to control her illness with diet and exercise. D’Abrera accepts that the woman is competent, but by virtue of her decision, he regards her as lacking insight. He laments that the modernised laws will ‘constrain the operation of beneficence’ that would have seen her forced to take medication.

Contrast this to a highly publicised case of Penelope Dingle – the young Western Australian woman who competently declined recommended surgery for early rectal cancer and opted instead for homeopathic remedies until just prior to her death (Record of investigation into the death of Penelope Dingle, 2010). Although there was much controversy over the role of the homeopath in the young woman’s death, no commentator took the position that she ought to have had insight some how beyond the ‘narrow parameters’ of her decision to refuse surgery. Certainly, no one suggested that Ms Dingle ought to have been placed under the knife by force.

There is no reason why, contrary to D’Abrera’s fears, that an assessment of ‘authentic insightful and voluntary engagement’ or, indeed, disengagement as evidenced in both our example and the case of Penny Dingle would not inform a capacity assessment. We would argue that ‘authentic, insightful and voluntary’ disengagement equates to the well-recognised right to competently (if unwisely) refuse medical treatment, not to be over-ridden merely when doctors think that doctor knows best.