Mental competence, or ‘mental capacity’ as it is referred to in recent legislation in the UK, is a concept that is expanding rapidly as a common currency in health and social care services. Neelke Doorn’s “Anthropological Reflection on the Concept of Competence” makes for fascinating and highly relevant reading and the legal and ethical discussions she describes taking place in the Netherlands would appear to echo many of those that have occurred in the UK over the last 5 to 10 (...) years, but with some significant differences. However, Doorn’s new conceptualization of mental competence causes some concerns, particularly if it was to be applied in services currently provided to people where their mental capacity may be .. (shrink)

The anthropological approach to mental competence is very interesting. I shall reason that the issue of mental competence and the determination best interests in the decision making process has been integrated together in this anthropological approach. I use the relatively recent Mental Capacity Act 2005 (MCA) for England and Wales (Department of Constitutional Affairs 2005) to illustrate this line of reasoning. I have deliberately chosen the phrase decision-making capacity (DMC) in this commentary to separate it from the concept of determination (...) of best interests. I am writing from the perspective of an old-age psychiatrist who frequently has to assess DMC and make decisions on behalf of those who lack .. (shrink)

We report on an interview-based study of decision-making capacity in two classes of patients suffering from depression. Developing a method of second-person hermeneutic phenomenology, we articulate the distinctive combination of temporal agility and temporal inability characteristic of the experience of severely depressed patients. We argue that a cluster of decision-specific temporal abilities is a critical element of decision-making capacity, and we show that loss of these abilities is a risk factor distinguishing severely depressed patients from mildly/moderately depressed patients. We explore (...) the legal and clinical consequences of this result. (shrink)

With the waves of reform occurring in mental health legislation in England and other jurisdictions, mental capacity is set to become a key medico-legal concept. The concept is central to the law of informed consent and is closely aligned to the philosophical concept of autonomy. It is also closely related to mental disorder. This paper explores the interdisciplinary terrain where mental capacity is located. Our aim is to identify core dilemmas and to suggest pathways for future interdisciplinary research. The terrain (...) can be separated into three types of discussion: philosophical, legal and psychiatric. Each discussion approaches mental capacity and judgmental autonomy from a different perspective yet each discussion struggles over two key dilemmas: whether mental capacity and autonomy is/should be a moral or a psychological notion and whether rationality is the key constitutive factor. We suggest that further theoretical work will have to be interdisciplinary and that this work offers an opportunity for the law to enrich its interpretation of mental capacity, for psychiatry to clarify the normative elements latent in its concepts and for philosophy to advance understanding of autonomy through the study of decisional dysfunction. The new pressures on medical and legal practice to be more explicit about mental capacity make this work a priority. (shrink)

The use of coercive measures in mental health care is an issue of ongoing concern (Cf. Fisher 1994; Janssen et al. 2008; Paterson and Duxbury 2007; Prinsen and Van Delden 2009; Widdershoven and Berghmans 2007; Wynn 2006). On the one hand, coercive interventions seem to infringe the patient’s right to self-determination (principle of autonomy). However, professionals are also committed to providing the care they deem necessary (principle of beneficence). In other words, professionals in mental health care are often caught between (...) the two (opposing) ideals of beneficence and autonomy. In medical practice, the right of self-determination is operationalized in the principle of informed consent. A medical physician is .. (shrink)

Evidence from jurisdictions that allow assisted dying is frequently used in the debate about assisted dying in the UK, since it provides important information about how assisted suicide and voluntary euthanasia work in practice. However, in order to interpret these data meaningfully, it is essential that they are understood in the context of the different legal and regulatory frameworks in operation in these countries. -/- The Commission on Assisted Dying has commissioned this expert briefing paper in order to help unpick (...) these complexities, and identify evidence for the effectiveness of the various legal safeguards that have been employed in jurisdictions that allow assisted dying. In the briefing paper the authors identify and explain the features of the legal regimes that regulate assisted dying in four target jurisdictions: the Netherlands, Belgium, Oregon and Switzerland. -/- They explore the evidence for the effectiveness of individual safeguards in each of these regimes in turn. Then they evaluate the evidence for the effectiveness of each safeguard, drawing on a detailed examination of the evidence, and, where possible, make recommendations on how these regimes could implement and regulate assisted dying more effectively. (shrink)