Capacity, Suicide & DID

Capacity, Suicide and DID

One night I found myself at the train tracks. It was dark, cold. I waited. And waited. No trains came. I got tired of waiting and checked my phone to see what was up with the trains. Mr Google told me no trains would come along that stretch of track until the morning commuter trains ran. I went home.

Another day I felt myself spiralling. I was terrified that come 2am I would be at the train tracks. I wanted help to avert that future path. I called the crisis line for help to be told ‘that’s your choice’ if you go and do that. That did not help. Instead I took a load of diazepam to ensure I was completely knocked out overnight.

I recently responded to a twitter poll on whether a mental health professional (“MHP”) had ever told me that it’s my choice to die and they can’t stop you or words to that effect. An overwhelming majority answered yes (thanks @we_are_nina). It seems that my experience was not unusual, that a too ready assumption of capacity may be easy way for crisis teams to off load responsibility for suicide.

Was it really my choice to kill myself that 1st night? Would it have been my choice to kill myself that 2nd night? Did I have the mental capacity to make a choice, i.e. to make a decision to kill myself at that time?
I don’t think I did.

The Mental Capacity Act 2005 (“MCA”) provides that I must be assumed to have capacity unless it is established that I lack capacity (section 1(2)). I am also not to be treated as not being unable to make a decision merely because I make an unwise decision (section 1(4)).

For many killing one self is an unwise decision but for me, at that time, in the dark as to what was wrong, with no hope that things could get better (having tried…oh having tried), in unendurable pain and distress, it was not an unwise decision. But this is not the part of the MCA the MHP seem to be misapplying. The tone in which I was told ‘that’s your choice’ implied their belief that notwithstanding my professed fear of killing myself, if I was to go and do such a foolish and unwise thing then so be it, I had the capacity to do so. No skin off their nose.

The bit of the MCA to which I think the MHP paid little or no attention to was section 2(1). This provides that ‘a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or the brain’.

The practical assessment of capacity is done in accordance with Section 3(1) MCA. This states that I would be unable to make a choice to kill myself if I was unable to: (a) understand the information relevant to the decision; (b) or to retain that information; (c) or to use or weigh that information as part of the process of making the decision; (d) or to communicate my decision.

I don’t think I had a problem with (a), (b) and (d) and in a eight minute phone call I’ll forgive them for not checking. My concern is the possible effect of my illness/disorder on my ability to use or weigh information and the wholesale failure of the MHP to assess whether I was able to make a capacitious decision i.e. make a choice, at that time to kill myself because of the effect of my illness/disorder.

Using or weighing is ‘the capacity actually to engage in the decision-making process itself and to be able to see the various parts of the argument and to relate the one to another’ (The PCT v P, AH & the Local Authority [2009] EW Misc 10 (COP)).

Clearly in the second example I was able to use and weigh. I took in the lack of help the MHP was giving me, assessed my chances of making it through the night, factored in my then wish not to die, me access to pills and made a capacitous to knock myself out to remove the possibility of wandering at night. But the MHP didn’t ask me any questions to establish this. His attitude was simply that if I didn’t go for the walk with the dog he was suggesting then of course it’s my choice to kill myself later on.

In the first example I found myself at the train tracks in a state of heightened distress. I had clearly entered into a dissociative state and my front or thinking brain had switched off and my back brain, the instinctive automatic one, the one that does not use or weigh up information had reacted. This is a basic biological trauma response that MHPs seem to ignore. I was not reasoning or cognitively processing. I was in shut down. At that time I lacked capacity to make the decision to kill myself.

Of course in my case it was slightly more complex as the protector one, who in extremis thinks that the only way to protect us is to throw ourselves under the train, had taken us there. I (the writer) did not really want to die at the time. I was tired of living sure, but not actively wanting to die. I don’t even think his (the protector one) front brain had gone off line – he protects us from pain, we were in pain, he acted to stop it within the circumstances that existed at the time. In fact we’ve since come to a negotiated settlement that he won’t do that unless certain criteria are fulfilled; his behaviour is rational. But I don’t expect MHPs to know or take this into account – all I expect is a proper assessment of capacity when I call and for them not to be so ready to say it’s your choice, see ya.

To be fair to MHPs I didn’t call them when I was at the tracks when perhaps they may have been more ready to assess capacity at a time of acute crisis. Luckily the googling in effect brought my thinking brain back online by enabling the functional one to take over and I went home.

However, had I thought to call the crisis line (and speak to an answer phone, leave a message and await a call back…really…really?) it’s possible that a calm voice, talking through options, not telling me it was my choice, supporting me to do some grounding might have (subject to the DID complication) restored to me the capacity to make a decision. If it did not then the MHP ought to go on to decide what to do in my best interests (sections 1(5) and 4).

So in summary the MHP was right to tell me it was my choice when I spoke with him. But problematically, although he was right for me, I’m sure there are many many occasions when a person’s distress and the effects of their disorder/illness is such that they lack capacity when they call the crisis team.

My concern is that the failure of MHP to ask themselves: how is this person’s illness/disorder affecting their thinking, to assess capacity, to avoid the easy off-loading response of ‘it’s your choice’, means lost opportunities to help vulnerable people and a failure by MHP to abide by their obligations under the MHA.