Radical disability organisations have attacked pervasive assumptions about the legitimacy of challenging the legal status of people with significant developmental and mental health issues. One of their main legal victories has been in shaping the drafting and subsequent interpretation of the UN Convention on the Rights of Persons with Disabilities, particularly Article 12, which requires that “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”. On more radical construals, this puts the Convention in conflict with much existing law based around mental disorder and mental capacity. In this post, I want to sound a note of caution and make a qualified defence of some aspects of this law — or, at least, offer a way of thinking about it that may go some way to accomodating the intutions driving these radical critics.
Mental health law in England and Wales falls under two main pieces of legislation: the Mental Health Act and the Mental Capacity Act. The Mental Health Act can be used to detain people against their will if they have a mental disorder that adversely effects their health or safety, or the safety of others, when administering treament requires such detention. But here I want to focus on the Mental Capacity Act, which is used to make decisions on behalf of people who have ‘an impairment of, or a disturbance in the functioning of, the mind or brain’ that leaves them without the ability to make the decision themselves. The criteria that the Act specifies for incapacity are inabilities to understand, retain, and use or weigh relevant information, or to communicate a decision.
Proponents of radical disability approaches have claimed that insofar as this makes legal rights to make decisions for oneself conditional upon a test that excludes some persons with disabilities from having their decisions accorded equal status under the law with others, then such legislation must be jettisoned. In Bach and Kerzner’s words: “mental capacity can no longer serve as a proxy for legal capacity.” When someone with a mental disorder or developmental disability has an identifiable will or set of preferences, then these critics maintain that proxy decision-making, such as acting in their stead in line with their legally-adjudicated ‘best interests’, cannot be countenanced. At most, other people are called upon to help articulate the person’s will. In more abstruse philosophical vocabulary, I tend to think of this as a ‘socially-facilitated voluntarism’.
Can legal and care systems based around mental capacity assessment adequately respond to these pressures? This is a genuinely open question for me; but I shall suggest that to some extent they might insofar as they construe mental capacity in ecological terms. This is an attempt to understand mental capacity in a way that goes beyond the dichotomy between a medical model of individual cognitive deficits and a social model centred on obstacles to exercising rights that arise from societal conditions. The aim is to integrate these perspectives, such that individual impairment and social impediments, as well as the complex relationship between the two, are taken into account in capacity assessment. Indeed, sociality is only one of the salient dimensions of the environment within which the functional capacities involved in decision-making are exercised, which also includes the physical environment.
In using the concept of ‘ecology’ in this way, I am building on attempts by the psychologist Gerd Gigerenzer to develop an ecological conception of rationality. Quoting Herbert Simon, Gigerenzer says:
“Human rational behavior is shaped by a scissors whose two blades are the structure of task environments and the computational capabilities of the actor”. Just as one cannot understand how scissors cut by looking only at one blade, one will not understand human behavior by studying either cognition or the environment alone.
This is part of his wider project to develop an understanding of the kinds of ‘bounded rationality’, and particularly uses of heuristics, which are deployed when solving problems under constraints of time and limited mental resources. But the basic idea which I want to adopt from Gigerenzer’s work is simply that assessing aspects of our mental functioning, such as whether there is an impairment or disturbance of functioning in mind or brain that impedes decision-making, is a matter of relating a narrow kind of individual psychology with aspects of environments it bears upon.
In some ways, a recognition of the ecological dimension of mental capacity—the fact that decision-making abilities depend upon an environment within which they are formed, exercised and assessed in relation to—is already implicit in some of the provisions of the MCA. For example, the Act requires decision-specificity, which ties capacity assessment to specific decisions (or classes of decision) and the conditions which hold at the ‘material time’ that decisions are made. So too, the Act requires that assessment only take place when someone has been provided necessary assistance to support their decision-making capacity. Nonetheless, this dimension of mental capacity assessment should be made more explicit and its potentially revisionary consequences ought to be emphasised.
In spelling this out, I will cover two aspects of what you might call the ‘decision ecology’: first, the physical environment in which decisions are made; and second, the social environment – particularly how we might think about the role of others in supporting decision-making. On a weaker interpretation of the ecological elements of capacity, aspects of the decision-making environment can be said to provide important instrumental supports for decision-making. But we could also understand these ecological elements in a stronger and more metaphysically significant fashion, such that mental capacity is not simply localised in the mind or brain but distributed over the environment.
Let’s start with the physical environment, and particularly the importance of place, which is often a relatively neglected influence on mental capacity. Thinking about where decisions are made, and what material tools are available to help make them, is one way of shifting the focus away from deficits in individual cognitive or evaluative abilities and towards a more synoptic account of decision-making capability. For instance, consider someone who becomes so anxious and confused whenever they are taken from their home and into a hospital that they can no longer retain relevant information that would enable them to make decisions. There is a sense in which this is an individual impairment – after all, other people may be able to cope with non-domestic settings with relative ease, and show no deterioration in their ability to remember or use relevant information. But it only becomes a problem – a genuine deficit – in certain environments; and this can suggest that the proper unit of assessment when thinking about mental capacity is not the mind or brain as ordinarily understood, but a composite of the individual and their environment.
You might approach this thought in a slightly different way instead. The philosophers Andy Clark and David Chalmers have argued that the mind can extend to our physical surroundings, that it is not confined to an individual’s brain. They contrast two people walking through New York to the Museum of Modern Art to meet a friend: Inga relies on her memory, whereas Otto, who has dementia, sometimes consults a notepad with directions when he forgets which turning to take. Clark and Chalmers argue that insofar as the notepad plays the same causal and functional role for Otto as aspects of Inga’s memory do for her, then Otto’s mind extends to the notepad. Similarly, it seems open to us to say that, were Otto’s ability to make decisions about medication or what to do with his money dependent on other physical features of physical his environment — say, the quiet, familiar surroundings of his home, where he has a set routine in place, which frees up some of his scarce mental resources for when he really needs them — then we might start to think that this environment is part of what constitutes his mental capacity, insofar as he cannot make competent decisions anywhere else. This implies that a mental capacity assessment which ignores the setting – which takes Otto alone to be the object of assessment, irrespective of whether he is on a ward, visiting friends, or back at home – could be highly misleading.
Of course, it is not only the material environment that is important for shaping decision-making capacity but also social relationships which people stand in with friends, families, carers and other professionals, as well as prevailing social attitudes in general. Often, it is worries about forms of undue influence that get raised in this respect, particularly in the context of intellectual disability, where the courts have denied aspects of someone’s mental capacity on the basis of the effect of overbearing mothers or abusive partners. But there is now increasing discussion of the role of others in supporting people’s functioning and their decision-making capacity in particular. Again, you might interpret this in weaker or stronger ways. Leslie Francis and Anita Silvers have proposed that we think about this in terms of decision-making trustees who function as a prosthesis for persons with cognitive disabilities. They say, just
as a prosthetic arm or leg executes some of the functions of a missing fleshly one without being confused with or supplanting the usual fleshly limb, so, we propose, a trustee’s reasoning and communicating can execute part or all of a subject’s own thinking processes without substituting the trustee’s own idea as if it were the subject’s own.
The prosthesis model is helpful insofar as suggests how others can generate independence rather than simply take it away; someone can be dependent on their prosthesis for doing certain tasks, but simultaneously, by using this prosthesis, they can be made more independent overall.
However, I am not sure that this prosthetic model is ultimately the best way to think about the relation between people and their social supports. That is because it instrumentalises these relationships, and ends up effacing the person in the supporting or caring role. To put it bluntly, unlike a fibre glass leg, friends and carers talk back! So, it is not so much that people who function as social supports for decision-making are tools or prosthetics that are “operated by the subject” (to use Francis and Silvers’ formulation); rather, they are agents in their own right, but around whose capabilities and actions another person’s decision-ecology can be structured. Their role in this environment might have either a benign or a corrosive impact on it; but, at least some of the time, it will make sense to say that their presence will be constitutive of decision-making capacity, and so will be part of the proper object of mental capacity assessment.
Finally, I want to say something about why it might be helpful to go about capacity assessment with this ecological framework in mind. Firstly, it provides a way of undertaking and communicating the results of capacity assessment in a way that could help to ameliorate the problems of what Winick calls ‘law-related psychological dysfunction’ — the deleterious effects that legal classification as incompetent can have on people’s self-conception and motivation. From an ecological perspective, we no longer have to think of individual persons as the sole objects of mental capacity assessment, but simply as being the locus or most important node in a wider decision-making apparatus. Thus, at least in theory, the problem is less whether you qua isolated individual meet a narrowly psychological set of decision-making criteria or are found to be incompetent; but is, instead, whether the right match between person and setting can be found. The hope is that this will be de-stigmatising and less damaging with respect the way people think of themselves, because incompetence is no longer a matter of individual functional deficit alone. Perhaps, in the end, these sorts of distinction will be cold comfort to people, especially when no changes in their environment are likely to significantly improve decision-making abilities; but it does at least drive home the message that practitioners must exhaust all the different kinds of material and social supports before a finding of incapacity can be made.
Relatedly, an ecological persepctive also attempts to preserve some of the key insights of the so-called ‘social model of disability’, such as that disability is not an asocial but a relational challenge and that both society and our physical environments need to be adapted in order to facilitate decision-making; but it does so within a framework that can accommodate proxy decision-making in those cases when someone does have a clear will and intention which nevertheless seems compromised, such as with medication-induced psychosis or a manic phase of bipolar affective disorder. Whilst it is unlikely to satisfy the most radical critics, thinking about capacity in ecological terms does, I hope, provide a way of foregrounding some of the progressive elements of the current system.