The ‘capacity for suicide phenomenon’ and the Mental Capacity Act

This article critically analyses the use of the Mental Capacity Act (MCA) in UK mental health services.  It describes a misuse of the MCA that the author has labelled the ‘capacity for suicide phenomenon’.  This occurs when mental health service users actively seeking help for suicidal thoughts are dismissed and denied treatment and care.   At best this is due to an uninformed understanding of the law, at worst due to a fatalistic view that suicide cannot be prevented.

In UK mental health services, a worrying trend has been reincarnating itself under different guises, yet with the same underlying fatalistic and stigmatising rhetoric. I have labelled this the ‘capacity for suicide phenomenon’.  Its current masquerade is the Mental Capacity Act (MCA)  (The Mental Capacity Act, 2005). Noble and empowering legislation has been used as a legal veneer to justify at best inaction, and at worse clinical negligence.  The mainstream suicide rhetoric in the UK and beyond is one of ‘speak out and seek help’.  This paper unashamedly highlights the fate of those diagnosed with mental health conditions who do reach out for help and are given a damaging message of ‘you have capacity to choose to end your life and there is nothing we can do about it.’  

The Mental Capacity Act (2005)

The principle of assumed capacity (principle 1. 2) is one of the central tenets of the Mental Capacity Act (2005).  It aims to preserve and enshrine the rights of capacitous adults to make decisions about their social and medical care.   This principle means that individuals should be assumed to have the capacity to make decisions for themselves unless it is established that they lack capacity.  It was intended to be empowering and liberating for vulnerable adults, protecting individuals from coercive practices and medical paternalism.

However, this principle is problematic when it comes to suicide and mental health; specifically, those service users who present to emergency mental health services, expressing thoughts and plans of suicide with associated distress. In these cases, the principle of assumed capacity is often misused.  Vulnerable mental health service users are being subject to the ‘capacity for suicide phenomenon.’ Statute is erroneously quoted to give a false veneer of legal authority to the refusal of care.

The capacity for suicide phenomenon

The capacity for suicide phenomenon occurs when service users are branded as having the capacity to choose to take their own life, despite evidence of ‘mental illness’ and/or associated distress.  Intervention or care is then withheld, based on a wrongful assumption that individuals with capacity do not warrant mental health care.  Suicide is viewed as not preventable in these cases.  According to  Aves (2022) these individuals are frequently told that suicide is a choice, and it is likened to choosing to smoke or making a lifestyle decision.  There is a widely-held belief within mental health services that if someone makes repeat suicide attempts but does not die, they are not genuinely suicidal, and are likely being manipulative  (Aves, 2022).

The ‘Take Responsibility’ mantra

Unfortunately, the stigmatised and perverse attitude that suicide is a choice and cannot be prevented is not new.  It has been concealing itself under various guises over the decades. The capacity for suicide phenomenon has a lingering echo of what I term the ‘take responsibility’ mantra. Prior to the introduction of the MCA, the fatalistic stigma was hidden in the take responsibility manta. Vulnerable mental health service users were directed to take personal responsibility for their actions and suicidal thoughts and feelings (Langley & Price., 2022). Unfortunately, I completed my mental health nurse training under the shadow of this rhetoric. I was witness to this stigmatising and unsubstantiated belief that service users simply needed to take responsibility for their own actions, including acts of suicide or self-harm, and any ‘reliance’ on mental health services was discouraged.  This was achieved through emotionless and uncompassionate interactions with professionals.  I am now deeply ashamed of any clinical interactions I had with service users that echoed this damaging rhetoric.  However, it was the language of mental health services that I was indoctrinated into.  Such language can be used to dehumanise human suffering  (Fisher, 2023).  Maybe I am naive in thinking of myself as remaining caring within these sterile interactions. If I consider myself as fundamentally caring and compassionate, then maybe the current intake of newly qualified mental health professionals are as equally caring and compassionate, yet blindly compliant and unquestioning of the capacity for suicide phenomenon.

Testimonial injustice

I have been on the receiving end of a heartless dismissal from services, in the form of the capacity for suicide phenomenon.  My life has been endangered by the inability of mental health services to see suicide as preventable in mental health service users who voluntarily seek help.  This is not just my own concern or, sadly, my own unique experience. It has been readily recognised, debated, and highlighted within survivor movements for some time  (Hibbins, 2020, 2019).  However, it has been dismissed by those in power as the irrational complaints of mad people. To give it a name, those of us with lived experience of this phenomenon have been victims of epistemic injustice  (Fricker, 2007).  Our capacity as knowers has been doubted by those in power, and we have been dismissed and undermined as untrustworthy, based on prejudice towards mental health service users as inaccurate conveyers of truth.

However, it is not just mad people who are speaking about the capacity for suicide phenomena.  In post-legislative scrutiny (House of Lords, 2014) the MCA was examined to check the Act was working as Parliament intended.  They found the implementation of the Act particularly lacking in health and social care sectors, and the principles of the act (including presumed capacity) not extensively embedded into health and social care settings and clinical practice.  More recently the House of Lords  (House of Commons & House of Lords, 2023) documented that they were disturbed by the evidence presented to them where the concept of capacity has been misused.  This was in the context of denying treatment to vulnerable suicidal individuals voluntarily seeking help.  They go so far as to ask the Government and NHS Trusts to set out a response to their concerns and to inform them what they are doing to prevent this misuse of capacity.

The quality of any such response and commitment to changing practice would need to be examined in due course.   It does allow service users, psychiatric survivors and activists to lobby the Government and NHS Trusts for an adequate response.

Is suicide preventable?

There is a pervasive cultural belief that if someone wants to end their life they will do it, rather than ask for help.  This suggests a fatalistic assumption that suicide cannot be prevented, or that anyone expressing a wish to end their life is at low risk of doing so.  Langley & Price (2022) argue this justifies withholding treatment and care.  If the individual does not die by suicide, the belief they were not at risk is reinforced.  Equally, if a patient does die by suicide their death is seen as unavoidable and inevitable – ‘if someone really wants to end their life, they will always find a way’.  This dangerous rhetoric leads to dismissing vulnerable service users in crisis and distress.

The human cost

The emotional impact of the capacity for suicide phenomenon and the immediate consequences of having urgent mental health care withheld is profound.  It not only shatters self-esteem and self-worth but confirms an existing belief that one is undeserving of care.  Service users who experienced this described it as traumatising, abusive, and disempowering (Aves, 2022).

Call to action

It is crucial that the MCA principle of “assumed capacity” is applied with caution and is balanced with the need to provide appropriate support and care to individuals who may be at risk of suicide.  It cannot be used as a reason to deny care.   I call for mental health service users and survivors to keep talking about their lived experiences of this phenomenon, and for professionals and academics not to dismiss our experiences as the ravings of mad people.

This blog is dedicated to individuals and their families impacted through the capacity for suicide phenomenon.