Decision-Making Capacity and the Deprivation of Liberty Safeguards

摘要

Principle z of the 2005 Mental Capacity Act (MCA) requires that decision-making capacity should be assumed, unless there is conclusive evidence, on a balance of probabilities, to the contrary (Department of Constitutional Affairs 2005). In his article "The Paradox of the Assessment of Capacity Under the Mental Capacity Act 2005," Ajit Shah (2011) raises the concern that the new Deprivation of Liberty Safeguards (DOLS), introduced through the Mental Health Act (Department of Health 2007), conflict with this principle (henceforth, the principle of presumed capacity) because, in practice, they will encourage the routine assessment of capacity even in the absence of any positive evidence of diminished capacity (Department of Health 2007). Is there, however, a genuine conflict between the routine assessment of capacity, and the principle of presumed capacity? In this article, I argue that there is not. On the contrary, the MCA and associated Code of Practice provide a clear warrant for keeping the decision-making capacity of members of certain patient groups constantly under review. Nevertheless, the concerns that Shah raises are not entirely misplaced, because there remains a significant mismatch between the conception of capacity that is implicit within the MCA and the sort of routine assessment that seems likely to occur under the DOLS.