Tag Archives: mental capacity act

67. Choosing exactly the right cakes, by law.

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A guard tried to stop me taking this photo. That’s Sheffield for you.

 

I’ve picked up a tail on the way to Costa. When I order a Flat White and the enormous jaffa cake, a person behind me in the queue nods, makes notes and ticks boxes. Someone is looking through all my bank statements and receipts. My texts and emails are all copied and filed. My cupboards have all been disturbed. My relatives are being interviewed about my habits and desires. Someone’s been at the pub asking what beer I like.

Am I a character from a John Le Carré novel?

Am I a teacher at an Islamic school?

Or have I just missed my Risperdal tablet today?

Is it a song by the Alan Parsons Project? Somebody out there…

None of the above. In fact all this snooping is to my benefit. I am being assessed to see what are my Best Interests.

Admittedly, to have got to this point, I have to fall within the protection offered by the mental capacity act, which means I must have a disorder of mind or brain. There has to be some doubt over whether I can make decisions properly. I have to spend some of my time being supervised in an institution. And people would probably stop me if I chose to leave.

It applies to nearly everybody then.

Carrying out a ‘Best Interests Assessment’ under the mental capacity act is estimated to take about 25 hours of social work time. Since a Supreme Court ruling in March, tens of thousands of institutionalised people are deemed to be deprived of their liberty and are awaiting assessment under the ‘DOLS’ procedure. One of the cases was called ‘Cheshire West’, which would be a good name for an stage actor. If the assessments are delayed, those deprived of their (Article 5) rights will be lined up for compensation payments. At 5pm every day your phone will ring showing an 0843 number and an automated message will ask whether your right to liberty has been infringed. It’s the new PPI.

What will social services do about the pile of referrals, which if stacked end to end, would stretch from all the way from Purgatory to Hell?:

Manager: How long does it take you to do a best interest assessment?

Social Worker: At least 25 hours.

Manager: From now on, you’ve got 25 minutes, and I’m being generous because it’s your birthday.

Social Worker: There are 56 pages of forms to fill out.

Manager:  Then you better get started right away.

Social Worker: We’re supposed to find out all about that person. We wouldn’t want them to get the lemon tart instead of the big jaffa cake.

Manager: Save that cake routine for the Supreme Court, why don’t you? I’m guessing Baroness Hale of Richmond will set fire to your ass and mine too.

Social Worker: Whatever happened to you, chief? You’ve taken down the picture of Shami Chakrabarti too!

Manager: If it’s toasted on one side it’s still toast. Three little letters son: G4S. And now you’ve got 22 minutes left.

It’s easy to blame the supreme court, but all they seem to have said is that someone should look out for people who have lost their mental capacity and have been locked up by the state. No-one expected the Spanish Inquisition, except perhaps Dan Brown.

 

43. Deciding whether to decide, or not.

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Some KFCs are quite opulent on the inside.

I’m hoping to acquire one of those official looking G4S-style jackets that parking inspectors wear, along with a peaked cap and mirror shades. The reason is, I live next to a school, and every morning the parking situation gets worse. The invention of the SUV has blurred the harsh boundaries of road, pavements and yellow lines and turned them into a mere probability distribution. There’s an Audi Q7 that behaves like a two tonne hippo, just setting itself down wherever it pleases. If I just stood outside, in my Parking jacket, maybe the madness would stop. Until I got arrested, anyway.

Parking properly is one of those skills, like cooking Yorkshire Pudding or wiring a plug, that 57% of people can’t do. Recently two surveys showed that modern school-leavers are no more literate than their grandparents were at the same age, and that they would lose a 100 metres race to their grandad. And that’s as he is now, aged 95, with advanced emphysema.

Surprisingly then, Britain, the country at the bottom of the skills league table, where only recent immigrants actually know how to do anything, introduced the Mental Capacity Act.

Luckily, like the parking outside the school, it is not enforced.

So called ‘mental capacity’ means that a person is able to make a decision. It depends to a large extent on how complicated the decision is as to whether the capacity is present or not. For instance a person could have mental capacity to choose breakfast, but not have capacity to make a will. In between these, somewhere, is capacity to have sex or get married, or both. If a person does not have capacity, they should first of all be suffering from a deficit of ‘mind or brain’. Then they must fail one or more of the following steps of decision making: Understanding the information, Retaining the information, Weighing the information up, and Communicating the decision.

Immediately obvious is the amount of greyness in the ‘weighing up’ part.

While the Mental Capacity Act makes it clear that making an unwise decision need not mean that the weighing up process is defective, it certainly leaves scope for an argument over the point where an unwise decision becomes irrational, and the point where irrational means lacking capacity.

Perhaps the intention of the mental capacity act was to give the illusion of clarity, while still leaving a huge judgement call to doctors or other professionals. The irony is that no professional person really understands the mental capacity act and certainly doesn’t retain it in his mind or communicate it well. The mental capacity act code of practice was written on the planet Zarg, in Zarg language, which is similar to Welsh.

So, only case law will reveal the dividing lines between unwise and irrational.  A series of judgements will set the goalposts for issues like leaving all your money to the scientologists, marrying your attractive but 70 years younger carer, buying a Porsche 911 to celebrate your 100th birthday etc.

For instance, last year, a judge ruled that an autistic woman with an IQ of 64 did not have mental capacity to have sex,

‘on the grounds she does not fully understand she could say no to such actions’.

Mr Justice Hedley said the 29-year-old lacked the mental capacity to consent to having sex, and made the order to protect her best interests.

He said she had to be protected from ‘potentially exploitative and damaging’ relations in the future, as she had already been involved in risky behaviour with people.

http://www.dailymail.co.uk/news/article-2096472/Judge-bans-vulnerable-woman-having-sex-lacks-mental-capacity-consent.html#ixzz28nA227ia

Would scientists or doctors have come to the same decision as the judge? I suspect that scientists would tolerate fuzziness better than lawyers, simply accepting that the person had some mental capacity but not as much as most other people. But the legal system is black and white, not grey.

Whether a person can choose to have sex or not soon becomes a question about how the mind and body work together. And this in turn leads to an examination of how the Automatic part of the Mind interacts with the Reflective Part. It would be nice to think that sexual behaviour falls to the Reflective Mind, but its association with the older parts of the brain and the older types of intoxicant means that it probably doesn’t. Whatever the IQ.

So rather than being a Parking Officer, perhaps I could be a Mental Capacity Inspector. Outside the school, armed with my new jacket, the Mental Capacity Act Code and the Oxford Dictionary of Zarg, it’s time to Stand up for Sensible.

Firstly, do these errantly parking motorists suffer from a disorder of mind or brain? Most of them look absent minded and some are clearly in a trance like state. Some seem distressed, shouting at their children. At least two are using nicotine. One appears to be wearing a dressing gown and slippers. In fact, none of them seems entirely well.

Then, have they really decided where they want to park? Do they know what yellow lines mean? Can they weigh up the ethical trade off between blocking the traffic and parking on the pavement? Would they know that squashing cyclists can hurt them?

Enforcing Parking Capacity is just the start. Irrational behaviour is going on all over town, much of it in the context of mind / brain dysfunction, such as Special Brew Disorder.

Firstly, the National Lottery till at the newsagent. Anyone who doesn’t understand Probability – a GCSE in Pure Maths with Statistics will suffice – should be politely turned away in their own best interests.

Then Ladbrokes. Look at these other customers – do they look like rich people?

The tattoo shop – this sounds silly, but do you know that won’t wash off? And KFC. It’s chicken Jim, but not as we know it.

The mental capacity act can only do so much, since it respects unwise decisions, or any decision made by someone of sound mind. That’s why we still need the Style Police and the Fashion Police. It’s vital these functions don’t go to G4S, even if they have the jackets already.

4. Getting over the mind brain problem

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What it looks like inside your mind.

One of the biggest barriers to tackling Depression is getting hung up on the Mind / Body, or more specifically the Mind / Brain problem. Its the mind part that’s the issue. As soon as the word ‘mental’ comes into play, people get all upset.

Its hard to adjust to the fact that we may be nothing more, or nothing less, than very clever machines. Its also hard to believe that consciousness can emerge gradually from a wiring network, providing that network is large enough.

Surely, if all you needed for consciousness was a massive wiring system, then British Telecom would be a god like super-creature bent on world domination. Hmm…

So can consciousness, or the mind, be considered a separate entity from the body? This argument still hangs heavily for many when they think about mental health problems.

The mind / brain issue did preoccupy philosophers for many centuries and still occupies a large section of Wikipedia. Some philosophers thought that mind and body were entirely separate devices. This idea is called ‘dualism’ and tends to persist in the way people think about the human control system.

If mind and body were different ‘dual’ entities altogether, like sound and light, then how could they interact? Some kind of transducer device, as proposed in the pineal gland by Descartes? Or simply, (cheating really) bringing God into it to solve the problem, God acting as a cosmic DJ, operating the twin turntables of mind and brain, making sure they were synchronised properly at all times?

(This school of thought was termed ‘occasionalism’ and probably did not influence the Faithless song ‘God is a DJ’ nor even Pink’s cover version. Pink was yet unknown in ninth century Iraq).

Glossing over Philosophy and Religion for a short moment, there is a lot to support the argument that the brain is a very sophisticated computer system.

For instance, nerve cells which make up the brain are long and thin and transmit electrical charge, just like wiring. The nerve pathways in the brain look a lot like the wiring loom in your Honda Civic. Damage to part of the wiring system, such as after a stroke, can clearly bring about symptoms, like loss of movement to a limb.

Higher up the brain, the nerve networks get more complicated and seem to provide for various different types of mental activity. There is the completely automatic type that controls basic physical functions like the operations of the lungs, heart and gut. Then there’s the largely automatic thinking system that does things like drive you to work and make toast. And then there is the reflective part of the mind that chooses what to think and do, or thinks it does, or you think it does.

Computer speak has given us a new ‘dualist’ model to consider, the division between hardware and software. Sometimes it can be helpful to think of the brain as the computer and the mind as the operating system. As an analogy it is both helpful and unhelpful.

The plus points are that factors such as social learning and experiences and memory can be seen as software, running within the brains basic wiring network, which starts off as a largely empty system and gradually fills up. The mind’s ability to process information and store it, or create actions, are similar to an operating system.

There is also a nice computer analogy to be made between the mind’s two main memory systems, long term and short term. Stored memory can be seen as similar to a computer’s hard drive, whereas short term or ‘working memory’ has features similar to RAM. Working memory is far more limited than long term and easily exceeded by multiple or complex tasks, such as chewing gum and walking at the same time.

Many memory problems, such as those found in Depression, occur within the process of moving memory between the two systems. Depression very often reduces the power of concentration, which is needed to retrieve information from the storage system, and also to file memories away.

Against the software / hardware model however is the following problem; the brain is not a fixed system like your PC or Mac. It can create, remove or change its physical structure as it goes along. The changes are not just electrical, as in hardware, or even just chemical – the brain is continually creating new connections. This is why the brain is called ‘Plastic’ – the term is used to mean flexible and open to structural change.

In babies and children there is a huge and continuous rebuilding program of nerve cells. In adults there is a much more limited program of nerve cell slum clearance but sadly not much in the way of inner city regeneration. Depressed people may lose their ability to generate new nerve connections in certain parts of the brain. In fact an attractive theory of antidepressant therapy (both drugs and psychological therapy) is that these may work by stimulating nerve cell growth in certain key areas.

And this brings us, a little early, to the punch line. Which is that structure and function are inseparable features of our control system. They are so interactive that it make no sense to identify two entities called Mind and Brain.

In practical thinking this dilemma presents itself frequently in thinking about mental disorders. For instance in thinking of some illnesses as either mind based or brain based. In particular illnesses that were once considered to be ‘psychosomatic’ such as bowel or fatigue syndromes. Within Fatigue Syndrome there have been heated arguments by some sufferers that they should not be regarded as mental health patients, even though CBT may well be very helpful, as it can be in ‘physical’ illnesses like chronic pain.

The law has frequently got itself into a pickle by trying to separate what is due to the mind and what is due to the brain. We have seen concepts such as ‘non insane automatism’ invented to illustrate this area. The newish Mental Capacity Act speaks of a disorder of ‘mind or brain’, to get over the possible argument about which one was disordered. Could one ever be disordered without affecting the other?

Within Education, we have seen concepts such as ‘Brain Based Learning’, or ‘Mind Brain Constructivism’ as it is more properly known. Here again the proponents are careful to use the term mind/brain as a portmanteau concept. Strangely, educators have been rather uncritical about the supposed ‘Brain’ aspects, such as improving food and water consumption for students. The ‘healthy mind in a healthy body’ notion has been about for a long time in schools. Before Michael Gove, and in fact before even Socrates, neither of whom would have seen the mind as a wiring loom.

One of the more interesting findings from Brain Imaging has been the recognition that psychotherapy may bring about structural brain changes. For instance, changes have been found to the mid-brain serotonin transporter system, after psycho-dynamic psychotherapy. A much larger number of studies have shown changes to nerve cell functioning during and after therapy.

It could be argued that these sorts of changes are not actually ‘causal’ but rather just a secondary indicator of mood change. Nevertheless, there is clearly a mood control system in the brain that is represented in physical structures.

So we have the Fatigue Syndrome lobby who resent being considered as having a mental health problem, and we have the ‘anti-psychiatry’ lobby who hate the so called ‘biological’ model of Depression.

The fatigue lobby would be delighted if one day a clear biological cause is shown for the illness – presumably then it becomes like MS or any other ‘proper’ illness?

And the anti- psychiatrists would be delighted if absolutely no biological change could be found in the brains of depressed people. They have been similarly delighted by the findings that antidepressants are not as effective as people used to think. Their response is not at all to suggest finding a more effective antidepressant, but rather to debunk the whole concept of Depression.

If you need to ask how can simple chemicals substances change the way people think and behave, then you have (wisely) not visited Nottingham city centre at 11pm. If you doubt that faults can occur in complicated electronic control systems, and that such faults are impossible to diagnose and treat, try using a 10 year old Beko washing machine. It has a mind of its own.

It seems the learning point is never to try and assign a problem to mind / or body, and always to recognise that the two are one. If that makes us just a brilliant machine or merely thirty nine dollars worth of chemicals dressed in a suit of similar value, so what?

Well, for one thing, less stigma, and less guilt. If we have defective mood control systems, whatever the basis, then this is a health problem and not shameful.

I was taught by Irish Nuns that ‘man thou art dust and to dust you will return’. (Its the kind of thing Rugby Forwards say to each other before a game). The dust cost less than thirty nine dollars in those days.

And if God is really acting as DJ, is he playing enough soul?