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Best Interests, Mental Capacity Legislation and the UN Convention on the Rights of Persons with Disabilities Brendan D

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Best Interests, Mental Capacity Legislation and the UN Convention on the Rights of Persons with Disabilities Brendan D BJPsych Advances (2015), vol. 21, 188–195 doi: 10.1192/apt.bp.114.012922 ARTICLE Best interests, mental capacity legislation and the UN Convention on the Rights of Persons with Disabilities Brendan D. Kelly Brendan D. Kelly is Associate interests in England, Wales, Scotland, Northern Clinical Professor of Psychiatry SUMMARY Ireland and Ireland, and explores these differing at University College Dublin and ‘Best interests’ is a key principle of the Mental a consultant psychiatrist at the conceptualisations in the context of the United Mater Misericordiae University Capacity Act 2005 (England and Wales), Mental Nations (UN) Convention on the Rights of Persons Hospital, Dublin. In addition to his Capacity Bill (2014) (Northern Ireland) and Mental with Disabilities (CRPD). medical degree, he holds doctorates Health Act 2001 (Ireland), although there are cur­ in medicine (MD), history (PhD), rently proposals to remove ‘best interests’ from governance (DGov) and law (PhD). Irish legislation. Legislation in Scotland refers to Mental capacity and best interests Correspondence Professor ‘benefit’ resulting from interventions. Judicious How is mental capacity defined in law? Brendan D. Kelly, Associate Clinical use of ‘best interests’, in line with guidelines that Professor of Psychiatry, Department The principle of best interests is commonly prioritise the person’s autonomy, will and prefer­ of Adult Psychiatry, UCD School invoked in relation to mental capacity legislation, of Medicine and Medical Science, ences, is a powerful way to promote the values and University College Dublin, Mater rights that underpin the United Nations Convention and Box 1 presents definitions of mental incapac- Misericordiae University Hospital, on the Rights of Persons with Disabilities and to ity from legislation in England, Wales, Scotland, 62/63 Eccles Street, Dublin 7, safeguard the dignity of individuals with mental Northern Ireland and Ireland, based on the Ireland. Email: brendankelly35@ disorder and/or reduced mental capacity. most recent legislative developments in each gmail.com jurisdiction. It includes the Mental Capacity Bill LEARNING OBJECTIVES (2014) in Northern Ireland and the Assisted • Appreciate the relevance and meanings of the Decision-Making (Capacity) Bill 2013 in Ireland, principle of best interests both of which are still in development but which • Understand the implications of the Convention on are good indicators of the direction of change in the Rights of Persons with Disabilities for mental these jurisdictions and, possibly, beyond. capacity legislation and related practice Definitions of lack of capacity in these • Understand recent proposals to merge mental jurisdictions share substantial similarities health and mental capacity legislation into a but there are also interesting differences. The single legislative framework (e.g. in Northern Mental Capacity Bill (2014) in Northern Ireland, Ireland) for example, makes a clear effort to design a DECLARATION OF INTEREST definition that is as disability-neutral as possible. None For example, whereas the Adults with Incapacity (Scotland) Act 2000 states that a person may be ‘incapable’ by ‘reason of mental disorder or The idea of ‘best interests’ is central to the Mental of inability to communicate because of physical Capacity Act 2005 in England and Wales, the disability’ (section 1(6)), in the Northern Irish Bill Mental Capacity Bill (2014) in Northern Ireland ‘it does not matter (a) whether the impairment and the Mental Health Act 2001 in the Republic or disturbance is permanent or temporary; (b) of Ireland (hereafter referred to as Ireland), among what the cause of the impairment or disturbance other pieces of legislation. It can, however, be is’ (section 2(2)) or ‘whether the impairment or difficult to balance patients’ best interests and disturbance is caused by a disorder or disability their rights to autonomy and self-determination or otherwise than by a disorder or disability’ (Fistein 2009). (section 2(3)). In light of ongoing fundamental revisions of Overall, these definitions resemble each other in legislation in Northern Ireland and Ireland, this more ways than they differ. There are, however, article outlines current conceptualisations of best significant differences in relation to other aspects 188 Downloaded from https://www.cambridge.org/core. 30 Sep 2021 at 15:53:14, subject to the Cambridge Core terms of use. Best interests, mental capacity legislation and the UN CRPD Downloaded from BOX 1 Legal definitions of mental incapacity in England, Wales, Scotland, Northern Ireland and the Republic of Irelanda https://www.cambridge.org/core Mental Capacity Act 2005 Adults with Incapacity (Scotland) Act 2000 Mental Capacity Bill (2014) Assisted Decision­Making (Capacity) Bill 2013 (England and Wales) (Scotland) (Northern Ireland) (Republic of Ireland) A ‘person lacks capacity in relation to a matter if at ‘Incapable’ means ‘incapable of (a) acting; or (b) A ‘person lacks capacity in relation to a matter A ‘person lacks the capacity to make a decision the material time he is unable to make a decision making decisions; or (c) communicating decisions; if, at the material time, the person is unable to if he or she is unable (a) to understand the for himself in relation to the matter because of an or (d) understanding decisions; or (e) retaining make a decision for himself or herself in relation information relevant to the decision, (b) to impairment of, or a disturbance in the functioning the memory of decisions, as mentioned in any to the matter because of an impairment of, or retain that information, (c) to use or weigh that of, the mind or brain’ (section 2(1)), regardless provision of this Act, by reason of mental disorder a disturbance in the functioning of, the mind or information as part of the process of making the of ‘whether the impairment or disturbance is or of inability to communicate because of physical brain’ (section 2(1)). decision, or (d) to communicate his or her decision . 30 Sep 2021at15:53:14 permanent or temporary’ (section 2(2)). disability’ (section 1(6)). ‘It does not matter (a) whether the impairment (whether by talking, writing, using sign language, A ‘lack of capacity cannot be established merely by A ‘person shall not fall within this definition by or disturbance is permanent or temporary; (b) assisted technology, or any other means) or, if the reference to (a) a person’s age or appearance, or reason only of a lack or deficiency in a faculty what the cause of the impairment or disturbance implementation of the decision requires the act of a (b) a condition of his, or an aspect of his behaviour, of communication if that lack or deficiency can is’ (section 2(2)); or ‘whether the impairment or third party, to communicate by any means with that which might lead others to make unjustified be made good by human or mechanical aid’ disturbance is caused by a disorder or disability third party’ (section 3(2)). assumptions about his capacity’ (section 2(3)). (section 1(6)). or otherwise than by a disorder or disability’ Capacity is to be ‘construed functionally’; i.e. ‘a , subject totheCambridge Coreterms ofuse. A ‘person is unable to make a decision for himself (section 2(3)). person’s capacity shall be assessed on the basis if he is unable (a) to understand the information A ‘person is unable to make a decision for himself of his or her ability to understand the nature and relevant to the decision, (b) to retain that or herself in relation to a matter if the person consequences of a decision to be made by him or information, (c) to use or weigh that information as (a) is not able to understand the information her in the context of the available choices at the part of the process of making the decision, or (d) to relevant to the decision; or (b) is not able to retain time the decision is made’ (section 3(1)). communicate his decision (whether by talking, using that information for the time required to make A ‘person is not to be regarded as unable to sign language or any other means)’ (section 3(1)). the decision; or (c) is not able to appreciate the understand the information relevant to a decision if A ‘person is not to be regarded as unable to relevance of that information and to use and he or she is able to understand an explanation of it understand the information relevant to a decision weigh that information as part of the process given to him or her in a way that is appropriate to if he is able to understand an explanation of it of making the decision; or (d) is not able to his or her circumstances’ (section 3(3)). given to him in a way that is appropriate to his communicate his or her decision (whether by The ‘fact that a person is able to retain the circumstances (using simple language, visual aids or talking, using sign language or any other means)’ information relevant to a decision for a short any other means)’ (section 3(2)). (section 3(1)). period only does not prevent him or her from ‘The fact that a person is able to retain the The ‘information relevant to the decision includes being regarded as having the capacity to make the information relevant to a decision for a short period information about the reasonably foreseeable decision’ (section 3(4)). only does not prevent him from being regarded as consequences of (a) deciding one way or another; ‘Information relevant to a decision shall be able to make the decision’ (section 3(3)). or (b) failing to make the decision’ (section 3(2)). construed as including information about the ‘The information relevant to a decision includes The ‘person is not to be regarded as “not able reasonably foreseeable consequences of (a) each information about the reasonably foreseeable to understand the information relevant to the of the available choices at the time the decision consequences of (a) deciding one way or another, or decision” if the person is able to understand is made, or (b) failing to make the decision’ (b) failing to make the decision’ (section 3(4)).
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