In this second blog post, we delve into the intricate challenge of defining capacity within a binary system, particularly for individuals dealing with hyperarousal or trauma. We explore how these circumstances can hinder optimal cortical function and, consequently, influence capacity assessments.

As a sexual offence examiner working closely with trauma, I couldn’t help but notice how compliance was exhibited by many of the individuals we assessed. They seemed capable of articulating the information relevant to their decisions, retaining and weighing it, and effectively communicating their choices. However, we were acutely aware that these decisions were often rooted in compliance resulting from trauma. It’s well-known that the cortex struggles to function effectively in states of heightened adrenaline, leading to impaired decision-making.

So, how exactly does trauma impact capacity?

Traumatic experiences can deeply affect an individual’s cognitive processes, altering their perception of self, others, and the future. It’s common for trauma survivors to view themselves as inadequate or damaged, see the world as unsafe and unpredictable, and regard the future as bleak. These cognitive patterns profoundly impact their belief in their ability to utilise internal and external resources effectively.

In response to these challenges, we implemented a trauma-informed approach. This involved using grounding and reframing techniques, offering choices whenever possible, and recognising the crucial role of crisis workers as advocates.

As the professional responsible for these examinations, I had a dual responsibility: to ensure valid consent for the assessments made within this complex environment and to uphold my Professional Duty of Care, which encompasses the imperative to “do no harm.” This balance led me to reflect on the complexities of the Mental Capacity Act and the realisation that our clients might not fully comprehend the intricacies of their situations.

Our service was trauma-informed, with a commitment to avoiding re-traumatisation from repeat account recall and reducing the recording of inconsistencies in accounts. We also minimised the collection of sensitive medical history to protect confidentiality in the criminal justice system. Additionally, we employed empowerment and grounding techniques to help individuals reconnect with their cortex and mitigate the effects of adrenaline.

However, my inner thoughts remained unspoken, as I grappled with the fear of appearing paternalistic and potentially undermining individuals’ human rights and capacity to make decisions. This inner struggle created a self-deceptive thought process, hidden from those around me.

The unintended consequence of this inner conflict is that those who emulate my practice may view the mental capacity assessment as a straightforward process, overlooking the careful considerations I wrestle with.

In the many environments where I work as a forensic medical examiner, trauma and hyperarousal are common occurrences. In this context, the black-and-white questions of a binary system often feel overly simplistic, especially in a system where non-compliance carries consequences within the criminal justice system. Consent could often be considered compliance rather than valid but is recorded in our notes as an individual who made a choice and had capacity to make that decision.

Has The Mental Capacity Act impacted on our culture?

I have observed a lack of advocacy within our systems, with professionals fearing litigation if they deviate from the Mental Capacity Act. This may contribute to a loss of compassion, especially for those who appear to have capacity.

Trauma has a profound impact on the functioning of the limbic system, affecting the adrenal axis, cortisol levels, and neurotransmitter regulation, which can all lead to cortex shutdown. This results in tunnel vision, impaired memory, reduced creativity, and a tendency to follow the group, exhibiting behaviours like defensiveness, withdrawal, compliance, and an inability to make decisions. Our cognitive processes may create a facade of reasoned response, but beneath the surface, our brains are wired for safety and belonging. Trauma, power dynamics, coercion, and the complexity of systems often leave us overwhelmed or lacking the information needed to make informed decisions.

While I can mechanically follow the processes outlined in the Mental Capacity Act, my humanity often grapples with discomfort over the decisions. My emotional intelligence reminds me of my care for these individuals, pushing me to consider alternative approaches. However, this internal conflict leaves me feeling as though I am disempowering individuals and acting against legislation, leading to confusion.

It is crucial to remember that the purpose of the Mental Capacity Act is to protect human rights while serving as a decision-making tool. The notion of mental capacity as a binary concept, either having it or not, has left many practitioners, including myself, feeling uneasy. This approach appears to have led us to forget our duty of care, the principles of advocacy, and has enabled professionals to avoid making challenging decisions, such as addressing suicidal ideation.

These situations often raise profound ethical and moral questions:

Autonomy vs. Protection: Balancing an individual’s autonomy with the duty to protect them from harm is a complex challenge.

Ethical Deliberations: Difficult situations often give rise to deep ethical deliberations, which are rarely documented.

While the Mental Capacity Act recognises this complexity and provides principles and frameworks to navigate it, understanding the underlying value sets alongside the rules is crucial to avoiding poor decision-making. Neglecting these considerations can lead to compassion fatigue, toxic work cultures, and a failure to notice critical nuances.