A finding that 'P' (as the person who is subject to Court of Protection proceedings is known) lacks mental capacity is the trigger for exposing them to decision-making by others and the powers of the Court of Protection (CoP) which, in the words of Justice Hedley, can be 'invasive and draconian' (Hedley J in PC v City of York Council cited in [2013] EWCA Civ 478 [13]). Whilst the law asserts the upper hand in the assessment of mental capacity for persons who come before the CoP, it is the discipline of psychiatry, which dominates expert witness testimony in these proceedings. There are a number of implications of allowing psychiatry to dominate this terrain, not least that, as will be argued in this article, clinical discourse, which makes reference to non-statutory terminology such as 'lack of insight' and 'non-compliance' are imported into the business of capacity assessment. This terminology, if used lazily and without clear reference to the statutory criteria, has the potential to muddy the waters of assessing P's capacity. At its worst, it can mask value judgements, which threaten to undermine the law's 'autonomy promoting' provisions set out in the Mental Capacity Act 2005. Whilst it is not intended to discredit 'insight' as a concept in psychiatry, this article concludes that it has a proper context and that in the mental capacity context, decision-makers, lawyers, and advocates should exercise careful scrutiny of its use, and CoP judgments should carefully interrogate the language imported by expert witnesses.
Keywords: Capacity; Court of Protection; Insight; Psychiatry.
© The Author 2016. Published by Oxford University Press.