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Capacity assessment under the Mental Capacity Act 2005: Delivering on the functional approach?

Published online by Cambridge University Press:  02 January 2018

Mary Donnelly
Mary Donnelly*
Affiliation:
University College Cork
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Abstract

A fundamental aspect of the Mental Capacity Act 2005 (MCA) is the statutory endorsement of a functional approach to capacity. In principle, this requires a separate assessment of capacity in respect of each decision to be made. Most capacity assessments take place at a non-judicial level, and, outside of day-to-day decisions, the most common assessors are likely to be healthcare professionals. This paper investigates the practical operation of the capacity assessment process at both judicial and non-judicial levels. It asks whether the process can deliver on the MCA's goal of preserving maximum decision-making freedom, while, at the same time, providing an appropriate degree of protection. It argues that assessors who are not legally trained encounter significant difficulties in carrying out the essentially legal task of assessing capacity. It also shows that assessors' values and biases, both professional and personal, are likely to impact on the conclusions reached. Having identified these difficulties, the paper considers their implications for the MCA's approach to capacity. It evaluates the attempts in the MCA itself to address assessors' limitations and argues that these will not have a substantial impact on the way in which capacity assessors operate. It considers other ways in which the quality of assessment could be improved and puts forward specific suggestions as to how greater assessor accountability can be delivered and increased rigour introduced to the capacity assessment process.

Type
Research Article
Information
Legal Studies , Volume 29 , Issue 3 , September 2009 , pp. 464 - 491
Copyright
Copyright © Society of Legal Scholars 2009

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References

1 The MCA came into force gradually over the course of 2007, with the main body of the Act coming into force on 1 October 2007.

2 A functional approach had long been accepted at common law: see Banks v Goodfellow (1870) LR 5 QB 549; Jenkins v Morris (1880) 14 Ch D 674. However, Part VII of the Mental Health Act 1983 and the Enduring Powers of Attorney Act 1985 (both of which were repealed by the MCA) permitted global findings of incapacity to make decisions about property and affairs.

3 Masterman-Lister v Brutton [2002] EWCA Civ 1889, [2003] 3 All ER 162 at [62].

4 See the Law Commission's justification for its recommendation of this approach: Report on Incapacity Law Com No 231 (HMSO, 1995) p 33.

5 General Assembly Resolution 61/106 (2006), Art 12.

6 Recommendation No R (99)4 of the Committee of Members to Member States on Principles Concerning the Legal Protection of Incapable Adults (adopted 23 February 1999) Principle 3.

7 See Winterwerp v Netherlands (1979) 2 EHRR 387; Shtukaturov v Russia (Application No 44009/05) (unreported) 27 March 2008; Masterman-Lister, above n 3.

8 See Suto, W et.al ‘Capacity to make financial decisions among people with mild intellectual disabilities’ (2005) 49 Journal of Intellectual Disability Research 199.CrossRefGoogle Scholar On capacity of patients with mental disorders, see P Appelbaum and T Grisso ‘The MacArthur Treatment Competence Study I: mental illness and competence to consent to treatment’ (1995) 19 Law and Human Behaviour 105; J Bellhouse et al ‘Capacity-based mental health legislation and its impact on clinical practice: 2) treatment in hospital’ [2003] Journal of Mental Health Law 24; G Owen et al ‘Mental capacity to make decisions on treatment in people admitted to psychiatric hospitals: cross sectional study’ (2008) 337 British Medical Journal 40.

9 Note, however, that under the MCA the Court of Protection may make a declaration of incapacity in respect of decisions of a particular type, eg decisions in respect of property and affairs (s 15). In such circumstances, the court may appoint a deputy to make the decisions covered by the declaration on behalf of the person lacking capacity (s 16). However, the deputy does not have the power to make a decision in relation to a matter covered by the appointment if he or she knows or has reasonable grounds for believing that the person actually has capacity in relation to the matter (s 20(1)).

10 [2002] 2 All ER 449 at 455. Dame Butler-Sloss P's comments were made in respect of capacity to make healthcare decisions at common law, the standard for which is largely reproduced in the MCA.

11 Contrast the view of Lord Phillips CJ in R (B) v Dr SS and Dr AC [2006] EWCA Civ 28, (2006) 90 BMLR 1 at [49], where capacity was described as ‘an important, but by no means straightforward [,] concept under English law.’

12 The MCA does not apply to decisions in respect of treatment for a mental disorder where a patient has been admitted to hospital for assessment or treatment under ss 2 and 3 of the Mental Health Act 1983. These decisions are governed by the framework contained in Part IV of the Mental Health Act 1983 (as amended).

13 See, generally, Bartlett, P Blackstone's Guide to the Mental Capacity Act 2005 (Oxford: Oxford University Press, 2nd edn, 2008);Google Scholar

14 The MCA does not displace the common law standards in respect of other decisions. However, it was suggested in the Code of Practice to the MCA (TSO, 2007) para 4.33 that judges may adopt the MCA standard if they consider it appropriate. In Re MM (An Adult) [2007] EWHC 2003 (Fam), [2009] 1 FLR 443 at [79]–[80] Munby J explained that ‘appropriate’ means appropriate ‘having regard to the existing principles of the common law’ and does not mean that the judge simply wishes to apply the statutory standard. On the basis of this definition of appropriate, the MCA standard has been held also to apply to capacity to litigate: see Saulle v Nouvet [2007] EWHC 2902 (QB) at [16].

15 MCA, s 2(1).

16 Ibid, s 3(2).

17 Ibid, s 3(3).

18 Ibid, s 2(3).

19 Ibid, s 1(2).

20 Ibid, s 1(3).

21 Ibid, s 1(4).

22 Above n 10, at 455.

23 Mental Capacity Act 2005: Code of Practice (TSO, 2007) (Code). A new statutory framework has recently been introduced in respect of assessment in the context of a deprivation of liberty: see text to n 35 below.

24 Ibid, para 8.16.

25 Ibid, para 4.38.

26 Ibid.

27 Ibid, para 4.40.

28 Ibid.

29 Ibid, para 4.42.

30 Ibid, para 4.53.

31 Ibid, para 4.51

32 Ibid, para 4.51.

33 Ibid.

34 See Bartlett, above n 13, p 63.

35 This follows the amendment of the MCA by s 50 of the Mental Health Act 2007, which inserts ss 4A, 4B and 16A into the MCA. This amendment was necessary to address the consequences of the decision of the European Court of Human Rights in HL v United Kingdom (Application No 45508/99) Reports of Judgments and Decisions 2004-IX. Some of the new provisions came into force on 1 April 2008 (see Mental Health Act 2007 (Commencement No 4) Order 2008, SI 2008/745) and the remainder on 1 April 2009 (see Mental Health Act 2007 (Commencement No 10 and Transitional Provisions) Order 2009, SI 2009/139).

36 A deprivation of liberty is defined in accordance with Art 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and the case-law arising under the Article; further guidance is found in the Mental Capacity: Deprivation of Liberty Safeguards Code of Practice (TSO, 2008).

37 Under s 4A of the (amended) MCA, a person may be deprived of liberty through admission to a hospital or care home only where the admission is authorised by a court order or by the relevant ‘supervisory body’ in accordance with the procedures laid down in Sch A1 to the MCA.

38 If the proposed admission is to a care home, the relevant supervisory body is the local authority; if to a hospital in England, the relevant body is the relevant Primary Care Trust; if to a hospital in Wales, it is the Welsh Ministers or a Local Health Board: MCA, Sch A1, Part 4.

39 Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008, SI 2008/1858.

40 Ibid, reg 6.

41 The MCA, s 45 establishes the Court of Protection which has an equivalent status to the High Court (s 47(1)). Section 45(6) of the Act abolished the office of the Supreme Court which had been called the Court of Protection.

42 Code, above n 23, para 8.16.

43 Ibid, para 8.4.

44 See Practice Direction E, issued by the Court of Protection. These treatments include the proposed withholding or withdrawal of artificial nutrition and hydration from patients in a persistent vegetative state, cases involving organ or bone marrow donation and cases involving non-therapeutic sterilisation. The requirement for judicial oversight in these situations pre-dates the MCA and was not affected by it.

45 See Shelford, L Practical Treatise on the Law Concerning Lunatics, Idiots, and Persons of Unsound Mind (Philadelphia: JS Littell, 1833) p 40;Google Scholar

46 [2002] 1 WLR 325.

47 Ibid, [7].

48 Re B, above n 10, at 471.

49 One notable exception is the decision in Rochdale Healthcare (NHS) Trust v C [1997] 1 FCR 274 where, in circumstances of extreme urgency, Johnson J disregarded the views of the consultant obstetrician that a woman, who refused to consent to a caesarean section, had legal capacity and found the woman to be incapable without any supporting evidence. Note also the decision of the Irish Supreme Court in Re Glynn Deceased [1990] 2 IR 326 in respect of testamentary capacity.

50 London Borough of Ealing v KS and Others [2008] EWHC 630 (Fam) at [84].

51 For a sample of some disagreements from the healthcare context, see Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 at 293; R (Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419 at 425; Re JT (Adult: Refusal of Medical Treatment) [1998] 2 FCR 662 at 665; B v Dr SS, Dr G and Secretary of State for the Department of Health [2005] EWHC (Admin) 1936, [190].

52 In Re C, ibid, at 293, Thorpe J preferred the evidence of psychiatrists appointed by the legal teams to that of the psychiatrist who had treated the plaintiff for almost 18 months and who had gained the plaintiff's ‘trust and confidence’. In Re JT, ibid, at 664, Wall J preferred the evidence of a psychiatrist who had met the patient twice to that of a nurse sister employed by the hospital who appeared to have an ongoing professional relationship with the patient.

53 Code, above n 23, para 4.44.

54 Ibid.

55 Ibid, para 6.33.

56 Above n 13, p 63.

57 Ibid.

58 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 at 586 per McNair J.

59 See text to n 151 below.

60 MCA, s 1(4) and s 2(3) (discussed further at text following n 131).

61 Code, above n 23, para 44.

62 The most relevant studies for the purposes of the discussion here (in chronological order) are Marson, D et al ‘Consistency of physicians’ judgments of capacity to consent in mild Alzheimer's disease’ (1997) 45 Journal of the American Geriatrics Society 132;Google Scholar

63 ‘How much do doctors know about consent and capacity?’, ibid. The questions asked (ibid, at 603) included: can a capable adult refuse treatment and should the Mental Health Act 1983 be used to treat a physical disorder when someone with a mental disorder is refusing treatment?

64 Evans, Warner and Jackson, above n 62. In the study of 86 emergency professionals (42 doctors, 21 nurses, 23 ambulance staff), 67% of doctors, 10% of nurses and no ambulance workers gave correct answers to legal questions about consent and capacity.

65 Under the Mental Health Act 1983, s 99 (now replaced by the MCA), a receiver was appointed where a patient was found to be ‘incapable, by reason of mental disorder, of managing and administering his property and affairs’ (s 94(2)).

66 Suto et al, above n 62, at 48.

67 Ibid, at 47.

68 Ramsay, above n 62. The study investigated 50 healthcare professionals (nurses, house officers and specialist registrars) working on acute and elective surgical and orthopaedic wards.

69 McCulloch, above n 62.

70 Most study methodologies involve steps to verify the conclusions of the experts.

71 Although see the attempt to develop a pilot testing mechanism for assessors in Whyte, S, Jacoby, R and Hope, T ‘Testing doctors’ ability to assess patients' competence’ (2004) 27 International Journal of Law and Psychiatry 291.CrossRefGoogle Scholar

72 Above n 62. The study was based on responses to two hypothetical vignettes rather than on assessment in real-life situations. The methodology employed does not include a method of verification of the expert psychiatrist's assessments.

73 The mean kappa score (ie the proportion of instances of agreement adjusted to take account of chance calculated on the basis that ‘perfect’ agreement is rated at 1) for agreement between the practising psychiatrists' assessment and that of the expert was 0.17 in respect of the first vignette and 0.12 in respect of the second (ibid, at 233).

74 Above n 62, at 374.

75 The patients were interviewed by two research interviewers at an interval of between 1 and 7 days. Inter-rater reliability between these two interviewers was ‘near perfect’ (ibid, at 374).

76 The mean kappa score for agreement was 0.51 (ibid).

77 Above n 62.

78 The assessment interviews were carried out by one researcher with an expertise in psychiatry using the MacCAT-T assessment measure (discussed further in text to n 157). A number of mechanisms were put in place to ensure the accuracy of the assessment (including referral of cases where the interviewer had doubts to a consensus meeting of four consultant psychiatrists and a consultant clinical psychologist (see ibid, at 1422).

79 Ibid, at 1424. Fifty out of the 159 patients assessed (31%) were found to lack capacity.

80 Ibid.

81 Ibid, at 1425.

82 See n 51 above.

83 See also findings of a US study on consistency reported in Marson et al, above n 62. This found ‘limited’ agreement among senior doctors with an expertise in geriatrics in respect of whether a patient with mild Alzheimer's disease had the capacity to consent to medical treatment.

84 Above n 71, at 291.

85 O'Keefe, S ‘a clinician's perspective: issues of capacity in care’ (2008) 14 Medico-Legal Journal of Ireland 41 Google Scholarat 44.

86 Singhal, A et al ‘Assessment of mental capacity: who can do it?’ (2008) 32 Psychiatric Bulletin 17 CrossRefGoogle Scholar at 19 found a high degree of consistency between doctor and nurse assessments of capacity (the mean kappa score for agreement was 0.719).

87 On professional dissonance more generally, see Teubner, G Law as an Autopoietic System (Florence: The European University Institute Press Series, 1993);Google Scholar

88 Above n 85, at 47.

89 ‘Judging competence: when the psychiatrist need, or need not, be involved’ in Cutter, M and Shelp, E (eds) Competency: A Study of Informal Competency Determinations in Primary Care (Dordrecht: Kluwer Academic Publishers, 1991) p 26.CrossRefGoogle Scholar

90 See Gutheil, T and Bursztajn, H ‘Clinicians’ guidelines for assessing and presenting subtle forms of patient incompetence in legal settings’ (1986) 143 American Journal of Psychiatry 1020 at 1020,Google Scholar where psychiatrists are advised on how to present evidence most effectively so as to avoid the inexperienced judge being ‘taken in’ by patients whose impairment of capacity may not be obvious. Any professional who takes this, evidently inappropriate, advice is unlikely to provide a fair assessment of the situation to the court.

91 Buchanan, A and Brock, D Deciding for Others: The Ethics of Surrogate Decision Making (New York: Cambridge University Press, 1989) p 27.Google Scholar

92 Report of the Joint Committee on the Draft Mental Health Bill HL 79-1; HC 95-1 (TSO, 2005) para 153.

93 The relationship between best interests and capacity assessment will be discussed below at text to n 142.

94 See also the doubts raised about the legal approach in Rutledge, E et al ‘Functional mental capacity is not independent of the severity of psychosis’ (2008) 31 International Journal of Law and Psychiatry 9.CrossRefGoogle ScholarPubMed

95 ‘How many procedural safeguards does it take to get a psychiatrist to leave the lightbulb unchanged? a due process analysis of the Macarthur treatment competence study’ (1996) 2 Psychology, Public Policy and Law 45 CrossRefGoogle Scholar at 67.

96 ‘Judgments about patient competence: cultural and economic antecedents’ in Cutter and Shelp above n 89.

97 Ibid, p 218. See a similar argument, from a geriatrician's perspective, in O'Keefe above n 85, at 44.

98 The impact of such motivations in this context is likely to be covert because of the express prohibition in the MCA, s 1(4) (and at common law prior to the Act) on determining capacity merely on the basis of an unwise decision. For discussion of more overt engagement of therapeutic motivations in other legal contexts, see Wexler, D and Winick, B (eds) Law in a Therapeutic Key: Developments in Therapeutic Jurisprudence (Durham NC: Carolina Academic Press, 1996).Google Scholar

99 See Ganzini et al, above n 62, at 239.

100 See text to n 80 above.

101 Above n 62, at 1425.

102 See text to n 146 below.

103 Above n 4, pp 39–40.

104 See Report of the Expert Committee Review of the Mental Health Act 1983 (Department of Health, HMSO, 1999) para 2.9;Google ScholarPubMed

105 Almost a Revolution: Mental Health Law and the Limits of Change (New York: Oxford University Press, 1994) pp 143–144.Google ScholarSee also at 46–47.

106 See Goffman, E The Presentation of Self in Everyday Life (New York: Doubleday Anchor, 1959) on the theory of encounters.Google Scholar

107 Rethinking Informed Consent in Bioethics (Cambridge: Cambridge University Press, 2007).Google Scholar

108 Ibid, p 56.

109 Ibid, pp 60–61.

110 ‘Competence: at the intersection of law, medicine, and philosophy’ in Cutter and Shelp, above n 89, pp 106–107.

111 Raymont et al, above n 62, at 1424 found that patients lacking capacity tended to be older and to have had fewer years of education; Cairns, R et al ‘Prevalence and predictors of mental incapacity in psychiatric in-patients’ (2005) 187 British Journal of Psychiatry 379 CrossRefGoogle Scholar found higher rates of incapacity among Black and minority (in particular African-Caribbean) patients who had not been born in Britain. For a summary of findings in respect of patients with mental disorders up until July 2006, see at 294.

112 Moye, J and Marson, D ‘Assessment of decision-making capacity in older adults: an emerging area of practice and research’ (2007) 62B Journal of Gerontology B Psychological Sciences and Social Sciences 3 CrossRefGoogle Scholar at 7.

113 Sashidharan, S Inside Out: Improving Mental Health Services for Black and Minority Ethnic Communities in England (London: National Institute of Mental Health, 2003).Google Scholar

114 Ibid, p 10.

115 Ibid, p 13.

116 See Broverman, I et al ‘Sex role stereotypes and clinical judgements of mental health’ (1970) 34 Journal of Consulting and Clinical Psychology 1;CrossRefGoogle Scholar

117 See Stefan, S ‘Silencing the different voice: competence, feminist theory and law’ (1993) 47 University of Miami Law Review 763 Google Scholar at 772; at 302.

118 ‘Courts, gender and the right to die’ (1990) 18 Law, Medicine and Healthcare 85.CrossRefGoogle Scholar

119 Ibid, at 87.

120 ‘Feminist perspectives on mental health law’ in Sheldon, S and Thompson, M (eds) Feminist Perspectives on Healthcare Law (London: Cavendish Publishing, 1998).Google Scholar

121 Ibid, p 89.

122 [1998] 3 WLR 936.

123 ‘Once upon a time in a hospital... the cautionary tale of St George's Healthcare NHS Trust v S, R v Collins and Others ex parte S [1998] 3 All ER 673’ (1999) 7 Feminist Legal Studies 75 at 83.

124 Above n 117, at 783.

125 MCA, s 1(3).

126 Ibid, s 3(2).

127 See Code, above n 23, paras 2.6–2.9 and ch 3.

128 See Gunn, M et al ‘Decision-making capacity’ (1999) 7 Medical Law Review 269 CrossRefGoogle Scholar at 270; at 173.

129 Benaroyo, L and Widdershoven, G ‘Competence in mental health care: a hermeneutic perspective’ (2004) 12 Health Care Analysis 295 at 298 (original emphasis).CrossRefGoogle Scholar

130 MCA, s 1(2).

131 Ibid, s 1(4).

132 Both principles are long established at common law. On the presumption of capacity, see Shelford, above n 45, p 23; Masterman-Lister, above n 3. On the irrelevance of the wisdom of the decision, see Re MB (An Adult: Medical Treatment) [1997] 2 FCR 541 at 554 per Butler-Sloss LJ; St George's, above n 122 at 957 per Judge LJ; Bolton Hospitals NHS Trust v O [2003] 1 FLR 824 at 827 per Dame Butler-Sloss.

133 MCA, 2(3).

134 Blackstone's Guide, above n 13, p 50.

135 Ibid.

136 There is a degree of general monitoring in respect of deprivations of liberty: see the Mental Capacity Act 2005 (Deprivation of Liberty: Monitoring and Reporting) Regulations 2009, SI 2009/827.

137 In addition to the requirement to take reasonable steps to establish that the person lacks capacity to make a decision on the matter in question, the person providing care and treatment must be able to show that he or she reasonably believed that the person lacked capacity and that it was in the person's best interests that the act be done.

138 Although note the preparedness of the Court of Appeal in St George's, above n 122, to award substantial damages in the tort of trespass for wrongful interference with a woman's right to refuse a caesarean section even though the intervention had probably saved the woman's life and that of the foetus. It should be noted, however, that this case involved an extraordinary degree of procedural inadequacy, including a blatant misuse of the detention provisions under the Mental Health Act 1983.

139 See Bartlett, P and Sandland, R Mental Health Law: Policy and Practice (Oxford: Oxford University Press, 3rd edn, 2007) p 573.Google Scholar

140 Ibid, p 575.

141 The term is borrowed from Manson and O'Neill, above n 107, p 183 (who use it in respect of informed consent).

142 MCA, ss 4(4) and 4(6).

143 See Donnelly, M ‘Best interests, patient participation and the Mental Capacity Act 2005’ (2009) 17 Medical Law Review 1 CrossRefGoogle Scholar at 17–20.

144 ‘the side effects of incompetency labelling and the implications for mental health law’ (1995) 1 Psychology, Public Policy and Law 6.CrossRefGoogle Scholar

145 Learned helplessness arises where an individual comes to believe that he or she cannot change his or her situation and ceases to try to do: see Seligman, M Helplessness: On Depression, Development and Death (San Francisco: Freeman, 1975).Google Scholar

146 Above n 144, at 8–9.

147 See Re A (Medical Treatment: Male Sterilisation) [2000] 1 FCR 193 at 201; R (Burke) v The General Medical Council and Others [2005] QB 424 at 455–456.

148 MCA, s 4(7).

149 Above n 139, p 572.

150 Ibid, pp 574–575 on the difficulties of imposing formal structures on family arrangements.

151 Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008, SI 2008/1858.

152 Compare ibid, regs 4 (mental health assessments) and 5 (best interests assessments) with reg 6 (capacity assessments).

153 See Folstein, M, Folstein, S and McHugh, P ‘Mini mental state – a practical method for grading the cognitive state of patients for the clinician’ (1975) 12 J Psych Research 189.CrossRefGoogle ScholarThe test is based on a series of questions intended to test orientation: the patient is asked the date, day of the week, as well as addresses and other basic information; memory: the patient is required to remember names of objects; concentration: the patient is asked to perform basic arithmetical functions and to spell words backwards; language: the patient is asked to write a sentence; visual-spatial ability: the patient is asked to copy a drawing. Scoring is out of a total of 30; it is recommended that patients who score below 23 should be referred for further assessment.

154 Above n 46, at 327.

155 See O'Keefe, above n 85, at 44.

156 See Dunn, L ‘Assessing decisional capacity for clinical research or treatment: a review of instruments’ (2006) 163 American Journal of Psychiatry 1323.CrossRefGoogle ScholarPubMed

157 See Grisso, T and Appelbaum, P Assessing Competence to Consent: A Guide for Physicians and Other Health Professionals (New York: Oxford University Press, 1998).Google Scholar

158 Ibid, p 32.

159 Ibid, pp 187–188. The first, entitled ‘Understanding Treatment Disclosures’ (UDT), requires the assessor to provide the patient with information relating to the disorder, the treatment proposed and the risks and benefits. The assessor then tests the patient's understanding of this information. The second test measure relates to the patient's ‘Perceptions of Disorder’ (POD) and is designed to test the patient's capacity to appreciate the relevance of the information provided to his or her own situation. The final test measure is called ‘Thinking Rationally About Treatment’ (TRAT). This assesses the patient's reasoning processes by looking at the way in which the patient reaches the decision. The test requires the patient to state reasons for his or her decision. The patient is then marked on the basis of consequential reasoning, comparative reasoning, generating consequences and logical consistency.

160 Details of the scoring procedure are found in ibid, pp 183–190.

161 Ibid, p 129.

162 T Grisso and P Appelbaum ‘Values and limits of the MacArthur Treatment Competence Study’ (1996) 2 Psychology, Public Policy and Law 167 at 169.

163 Cairns et al, above n 62, found that, when clinicians and expert assessors both used the MacCAT-T, the level of agreement between them changed from moderate to ‘near-perfect’ (see text to n 74 above).

164 See the reasons put forward by Grisso, T Evaluating Competencies: Forensic Assessments and Instruments (Dordrecht: Kluwer Academic, 2nd edn, 2002) pp 481–482 Google Scholar as to why this has been the case.

165 Kapp, M and Mossman, D ‘Measuring decisional capacity: cautions on the construction of a “capacimeter”’ (1996) 2 Psychology, Public Policy and Law 73.CrossRefGoogle Scholar

166 See text to n 161 above.

167 See text following n 107 above.

168 The ‘excessive’ degree of deference was recognised by Wolff, Lord ‘Are the courts excessively deferential to the medical profession?’ (2001) 9 Medical Law Review 1 Google Scholar at 1; see also at 201–202.

169 See Montgomery. ibid, at 200–201.

170 See text to n 49 above.

171 See, eg, Tameside and Glossop Acute Services Trust v CH [1996] 1 FCR 753; Norfolk and Norwich Healthcare (NHS) Trust v W [1997] 1 FCR 269; Rochdale Healthcare (NHS) Trust v C [1997] 1 FCR 274.

172 For a summary of the likely flaws in expert evidence in capacity cases (from an American perspective), see Grisso, above n 164, pp 12–17.

173 See text following n 41 above.

174 See the Court of Protection Rules 2007, SI 2007/1744 and the Practice Directions issued by the court, available at http://www.publicguardian.gov.uk.

175 Carney, T and Tait, D The Adult Guardianship Experiment (Annandale, NSW: Federation Press, 1997) pp 120–123.Google ScholarCarney and Tait, ibid, p 123, describe how, in the tribunals, medical evidence was carefully scrutinised, at times to the chagrin of doctors who were displeased to see their professional judgements treated as no more authoritative than the evidence of their patients.

176 See Explanatory Memorandum to the Court of Protection Rules 2007 No 1744 (L 12) para 7.2.

177 See Pt 7 of the Rules.

178 Rule 141.

179 For an example of participation which fails to be inclusive, see A Vittoria's investigation of the operation of judicial adult guardianship hearings in Kansas: ‘the elderly guardianship tribunal hearing: a socio-legal encounter’ (1992) 6 Journal of Aging Studies 165 CrossRefGoogle Scholar at 167.

180 Rule 124.

181 Rule 126.

182 Rule 128(1).

183 Rule 128(3).

184 Rule 90.

185 Rule 91.

186 These are available at http://www.publicguardian.gov.uk.

187 Above n 112, at 9.

188 See ibid, at 8.

189 In both studies of the operation of the Adults with Incapacity (Scotland) Act 2000 discussed above (see text following n 68) the professionals indicated a need for further training on the Act.

190 See, eg, the very limited guidance in paras 4.21–4.22 regarding what the ability to ‘use and weigh’ information requires.

191 See the website available at http://www.publicguardian.co.uk.

192 See, eg, Alonzi, A and Pringle, M ‘the Mental Capacity Act 2005’ (2007) 335 British Medical Journal 898;CrossRefGoogle Scholar

193 See Assessment of Mental Capacity: Guidance for Doctors and Lawyers (London: BMA, Law Society, 2nd edn, 2004).Google Scholar

194 ‘the meaning of incapacity’ (1994) 2 Medical Law Review 8 CrossRefGoogle Scholar at 21.

195 Ibid.

196 Notwithstanding the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and Council of Europe Recommendation No 99 (4), global designations of incapacity remain relatively commonplace across Europe; see Bartlett, P, Lewis, O and Thorold, O Mental Disability and the European Convention on Human Rights (Leiden: Martinus Nijhoff, 2007) ch 6;Google Scholar

197 Compare s 1(6) of the Adults with Incapacity (Scotland) Act 2000 and ss 57, 58 and 58A of the Mental Health Act 1983.

198 See, eg, the Scheme of the Mental Capacity Bill 2008 published by the Irish Department of Justice, Equality and Law Reform on 5 September 2008, available at http://www.justice.ie.