Continuities of Risk in the Era of the Mental Capacity Act

Abstract

When compared with the Mental Capacity Act (MCA) 2005, the Mental Health Act (MHA) 1983 seems an outlier. It authorises compulsory treatment of mental disorders on the basis of P’s risks. English law, therefore, discriminates between mental and physical disorders. Following the UK’s ratification of the Convention on the Rights of Persons with Disabilities (CRPD), the MHA probably also violates international law. Against this backdrop, one might expect that decisions contingent on risk are confined to the MHA and have no relevance elsewhere. This article argues that the opposite is true: risk-based decision-making has colonised MCA processes and plays a key role in determining the nature of P’s interaction with health services. These ‘continuities’ of risk are most notable in the Deprivation of Liberty Safeguards (DOLS), where assessments of risk are implicitly significant for best interests and eligibility determinations. Using governmentality theory as an explanatory model, this article claims that the DOLS can be reconstructed as part of a wider legal apparatus for the regulation of the risks of harm associated with mental disorders. The article also argues that the Law Commission’s recent proposals to introduce a new ‘protective care’ scheme and expand the remit of the MHA hint at a ‘rehabilitation’ of risk as an integral component of mental health and capacity law. The article concludes that the concept’s stigmatising potential, lack of definition, and conflict with the CRPD cast doubt on its capacity to reconcile English mental health law with the era of autonomy, capacity, and non-discrimination.

Risk and responding to self injury: is harm minimisation a step too far?

“…At both a theoretical and practical level risk influences mental health care. Fanning (2013Fanning ( , 2016 has argued that risk determines the nature of the patient's interaction with mental health services. For example, the objective of avoiding or minimising the risks of harm associated with mental disorder has become central to mental health law (Fanning, 2016, pp.…”

“…These amendments incorporated an increasing requirement to make clinical decisions based on the person's risk to self and/or others in order to detain such individuals for assessment or treatment under the Act (Glover- Thomas, 2011;Fanning, 2013). Moreover, the concept has come to dominate decision-making outside the scope of compulsory powers (Fanning, 2016).…”

Deprivation of Liberty in the Shadows of the Institution

“…Whereas the DoLS and LPS -as the names suggest -are positioned as safeguards for individual liberty, mental health law commentators portray the MHA as a formal 'compulsory power', better avoided if possible. Their implication is often that the DoLS are not 'formal' detention, are not a 'compulsory power', and therefore their use is in some way less serious and less restrictive than the MHA, even if applied in identical contexts for the same purpose (for example, Fanning, 2016Fanning, , 2018Wessely et al, 2018b: 123).…”

“…'Vulnerability' is, therefore, implicitly linked to 'risk', but its characterization differs from the risks associated with mental health law. Fanning (2016) positions interventions under the MCA at a 'lower' end of a risk spectrum than the MHA, but many risks managed by the MCA are serious. Some are more predictably harmful than the notoriously difficult-to-predict risks of suicide or violence in mental health.…”

Re‐thinking the Mental Capacity Act 2005: Towards the Next Generation of Law

“…146 Questions of safeguarding and public safety further those pressures. 147 It is now almost trite to say that society is risk averse, and when the mechanism to intervene is mental capacity law, it seems inevitable that pressures will be brought to make the control mechanism accessible. Baroness Hale, in a case regarding Mental Health Act compulsion, stated: 'Our threshold of capacity is rightly a low one.…”