A state of flux: How mental health affects decision making

13 May 2015
The law presumes that all adults have the capacity to make decisions affecting their freedom, finances, and living arrangements. In some circumstances, this isn’t the case, such as when a person suffers a brain injury and becomes unable to make decisions or manage their own affairs.

When an adult lacks capacity to make decisions, a court can appoint a guardian to make decisions on their behalf. If a person’s mental health, rather than an injury or old age, interferes with their decision-making capacity, it becomes much more difficult for the court to determine whether a guardian should be appointed, especially when the definition of mental health and mental illness is constantly changing.

In 2013, the American Psychiatric Association published its fifth revision of the Diagnostic and Statistical Manual of Mental Disorders (the DSM-5). The DSM-5 is a collection of diagnostic criteria to help identify when a person is suffering from a mental illness. In the DSM-5, several new disorders were identified, and others were changed or combined into new categories. Some of these changes are controversial, and psychiatrists have suggested that this new version of the DSM makes it too easy to “diagnose” experiences that are just normal parts of daily life, such as grief or shyness, leading to more people having psychiatric diagnoses on their medical records.

While being diagnosed with a mental illness or psychiatric condition does not automatically mean that a person will be considered to lack capacity, it is something that a court can consider in reaching a decision on whether a guardian needs to be appointed. To give one example, a woman who read Tarot cards at a market on weekends found that her daughter had made an application for involuntary treatment and guardianship orders, as the daughter felt that the predictions being made were harmful to the public. As this woman had a history of minor mental health diagnoses (although none related to Tarot reading), a provisional order was made until it could be shown that the woman was capable of making her own decisions and posed no threat to anyone.  

Under the new DSM-5 criteria, a person who has a history of multiple psychiatric disorders may have an even more difficult time convincing a court that they are able to understand the decisions required of them to manage their daily affairs. A person who, for example, has been diagnosed as suffering from stuttering, voyeurism, or male erectile dysfunction (all ‘psychiatric disorders’ in the DSM-5) and who then suffers a period of depression following the death of a spouse (which might no longer be recognised as simply grief, as it could under previous versions of the DSM), may find themselves the subject of a guardianship application by misguided or malicious family members seeking control of that person’s decisions (including financial decisions). While this is obviously an extreme illustration, and one that is unlikely to move a court to grant a guardianship order, it illustrates the danger posed by an ever-expanding definition of ‘mental illness’, especially to those whose previous ‘personality quirks’ may now fall under a clinical definition in the new DSM-5. 

By Matthew Littlejohn