Caring for a woman with intellectual disabilities who refuses clinical diagnostic investigations
BMJ 2014; 348 doi: https://doi.org/10.1136/bmj.f7645 (Published 03 January 2014) Cite this as: BMJ 2014;348:f7645
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Re: Caring for a woman with intellectual disabilities who refuses clinical diagnostic investigations
It is disappointing that the BMJ is perpetuating the myth that capacity assessment involves a "2-stage test".
McFarlane LJ made clear in the case PC & NC v City of York Council [2013] EWCA Civ 478, that the Mental Capacity Act specifies only a single test:
"For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain."
Mental Capacity Act (2005) s.2(1)
As McFarlane LJ states:
“Section 2(1) is the single test, albeit that it falls to be interpreted by applying the more detailed description given around it in ss 2 and 3. The detail within ss 2 and 3, outside that within s 2(1), does not establish a series of additional, free-standing tests of capacity. [...]There is, however, a danger in structuring the decision by looking to s 2(1) primarily as requiring a finding of mental impairment and nothing more and in considering s 2(1) first before then going on to look at s 3(1) as requiring a finding of inability to make a decision. The danger is that the strength of the causative nexus between mental impairment and inability to decide is watered down.”
Competing interests: No competing interests
Re: Caring for a woman with intellectual disabilities who refuses clinical diagnostic investigations
The Mental Capacity Act is English law and doesn't apply to e.g.Scotland (I don't know about Northern Ireland). Some acknowledgement of this would be appreciated, given that the BMA is a UK wide organisation.
Competing interests: I live and work in Scotland
Re: Caring for a woman with intellectual disabilities who refuses clinical diagnostic investigations
This was a very informative article as I was not aware of all the services that were available to help patients who had such difficulties as the patient in this case. Thank you for that.
I am however curious to understand how the decision was reached that it was in this patient's best interests to have upper and lower GI endoscopies. If she was not going to be treated anyway and died the following year, how was it in her best interests to have such an uncomfortable procedure? Were surgeons consulted in this "best interests" meeting? Was there a discussion about how the result of the endoscopies would improve her quality of life or clinical outcome? If she was going to be left to die anyway, why spend so much time, human and financial resources on procedures that did nothing to improve or inform the care she eventually received? Insight to this will be greatly appreciated.
Competing interests: No competing interests
Re: Caring for a woman with intellectual disabilities who refuses clinical diagnostic investigations
Dear Editors
Thank you for the opportunity to respond to Dr Waite’s letter.
Dr Waite is correct in stating that the test under the MCA 2005 is found in s2(1) and that it is a single test.
2 People who lack capacity
(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or
temporary.
(3) A lack of capacity cannot be established merely by reference to—
(a) a person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead
others to make unjustified assumptions about his capacity.
However, the test needs to be interpreted alongside the provisions of s3 when determining the causative element of the decision-making process i.e. why the individual cannot make the decision.
3 Inability to make decisions
(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable—
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the
decision, or
(d) to communicate his decision (whether by talking, using sign language
or any other means).
(2) A person is not to be regarded as unable to understand the information
relevant to a decision if he is able to understand an explanation of it given to
him in a way that is appropriate to his circumstances (using simple language,
visual aids or any other means).
(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the
reasonably foreseeable consequences of—
(a) deciding one way or another, or
(b) failing to make the decision.
The Endgame article states that the test is ‘a 2 stage functional test’ (not that the capacity assessment is a ‘2-stage test’) and this may be the cause of the misunderstanding. The Endgame article then goes on to set out the test found at s2(1) of the 2005 Act. However, for ease of understanding and practical application, the Endgame article (as in the Mental Capacity Act Code of Practice) splits this test into 2 parts i.e. a 2 stage functional test.
We hope that this clarifies the situation.
Competing interests: No competing interests