Mental health legislation and decision making capacity

Editor—We agree with Doyal and Sheather that mental health legislation should respect decision making capacity because patients with a mental disorder should not be discriminated against.¹ The current legal test of capacity and the criteria of capacity in the forthcoming mental capacity act in England and Wales largely focus on the intellectual and cognitive abilities of the patient. This legal concept is insensitive to some of the subtle and complex ways in which mental disorders can affect capacity.

Our ongoing research in anorexia nervosa implies that there are difficulties in using the current criteria of capacity to determine whether compulsory treatment should be used in this disorder. These current legal criteria fail to capture the range of complex difficulties affecting decision making, such as shifts in values and changes in the sense of personal identity.²,³

Patients themselves support the use of compulsory treatment, particularly to save life, despite finding the experience painful.⁴ However, capacity is not the main factor in determining whether patients feel they benefit from compulsory treatment. Instead, respect from and trust in professionals and the context are all important in determining whether compulsory treatment is experienced as helpful and appropriate.⁴,⁵

If capacity in its current form were to be introduced into mental health legislation, treatment, some patients who have real difficulties with making treatment decisions may be falsely judged as possessing capacity. A capacity based act may leave such patients at risk of “dying with their rights on.”