Assessing capacity in a risky situation
- In some situations, assessing capacity seems to have very high stakes for all concerned. For instance, a person might not be willing to have a low-burden medical treatment which all the medical professionals involved consider will save their life. Or a person might be expressing a desire to want to keep living in a situation of self-neglect which social workers consider to be dangerous for them.
- In some situations, you may feel that the stakes are so high that the only appropriate course of action is to take the matter to court for a judge to reach the decision whether the person has or lacks the capacity to take the decision in question (and, if they do not, what should happen at that point).A good example of such a case is Kings College NHS Foundation Trust v C and V  EWCOP 80.
- Outside the courtroom setting, there may be things you can do to reduce the risk. For instance, in some circumstances, you might simply be able to delay having to reach a conclusion about their decision-making capacity whilst providing them with support. You might also be able to propose another course of action – for instance a different medical treatment – which meets the concerns of everyone involved, but does not appear to provoke the same reaction on the part of the person.
Remember: capacity is not always the crucial issue
There are some situations where the person’s capacity is not, in fact, the determinative question. This is most obviously the case in relation to admission under the Mental Health Act 1983. Whilst the person’s capacity is relevant to the question of whether or not they could be admitted informally, if you are making decisions under the Mental Health Act 1983, you are ultimately having to ask yourself whether the person meets the criteria for admission (whether for assessment or treatment). These criteria are based upon mental disorder and risk, not decision-making capacity. If you consider that the person meets the criteria for admission under the MHA 1983, and (for whatever reason) the person appears not to wish to be admitted, then you should apply the criteria and process within the MHA 1983 without being distracted by questions of decision-making capacity.
Similarly, if the person is saying that they are at risk of suicide, asking whether or not they have capacity to take their own life is in many ways a red herring – the question, again, is one of risk. In the context of potential admission under the MHA 1983 it falls to be considered by reference to the criteria of the MHA 1983.
- However, if – for whatever reason – you need to reach a conclusion about the person’s capacity, then it is important to be clear that none of the principles in the Act mean that you have to ignore risk. You do need to be careful not to jump from the fact that a person is making a risky decision to the conclusion that the person lacks capacity to make it, and you cannot simply proceed to take decisions on a best interests basis because it seems like the right thing to do. But the courts have made clear that the European Convention on Human Rights imposes an obligation on public bodies not simply to accept at face value a person’s decision which puts them at risk if there is proper reason to think that they might not have the capacity to make it.In Arskaya v Ukraine  ECHR 1235, the European Court of Human Rights found a breach of the Article 2 ECHR operational duty where the doctors took refusal of life-saving treatment where … Continue reading
- How, then, to make sure that you do the right thing?
- In thinking about P’s capacity in this context, you should proceed on the basis that:
- The more serious the consequences for P of the decision, the more rigorous the steps that will be expected of the assessor before the determination is reached whether or not the person has capacity;
- In asking whether P has capacity to make a decision which has particularly risky consequences for them, the information that they must be able to process includes those consequences. Section 3(4) MCA 2005 makes this clear, as was also emphasised by the Supreme Court in A Local Authority v JB  UKSC 52.
- You can – and should – therefore test whether P can understand, retain, use and weigh the information that one course of action poses real risk to them, but another would (everyone else concerned considers) save their life, or otherwise be much safer. Testing in this way is not the same as confusing the outcome of the decision with their ability to make it, which the courts have made clear you cannot do.See PC and NC v City of York Council  EWCA Civ 478 at paragraphs 53 and 54 and Kings College NHS Foundation Trust v C  EWCOP 18 at paragraph 29. Rather, it is an important safeguard to ensure that whatever decision is reached is reached on a proper basis.
|↑1||A good example of such a case is Kings College NHS Foundation Trust v C and V  EWCOP 80.|
|↑2||In Arskaya v Ukraine  ECHR 1235, the European Court of Human Rights found a breach of the Article 2 ECHR operational duty where the doctors took refusal of life-saving treatment where “despite S. showing symptoms of a mental disorder, the doctors took those refusals at face value without putting in question S.’s capacity to take rational decisions concerning his treatment. Notably, if S. had agreed to undergo the treatment, the outcome might have been different.” (para 87).|
|↑3||See PC and NC v City of York Council  EWCA Civ 478 at paragraphs 53 and 54 and Kings College NHS Foundation Trust v C  EWCOP 18 at paragraph 29.|