If the Mental Capacity Act was law in Denmark in the fourteen hundred’s would poor Hamlet have been able to make the decision, to be or not to be?

Let’s explore the troubles and musings of poor Hamlet, as scribed by Mr. William Shakespeare.

In the most famous speech from the play Hamlet is quoted as asking “To be or not to be that is the question?”

It is a question indeed! However, had the great Bard been following the Mental Capacity Act Code of Practice in an attempt to elicit an answer from Hamlet he could have phrased it a little more directly. Although he would not have been as poetic if he had!

If this question was posed in a Mental Capacity assessment it should surely read, “to live or die”, perhaps?

No! Still not useful enough I’d argue. It does not explain the decision that Hamlet needs to make. To live or die is a little bit too vague for the Mental Capacity Act. What does to live or die mean, to contract typhoid or not? To die in battle or live in the castle? To live or die does not describe the choice that is available.

No, we need to be specific about the decision Hamlet is being asked to make.

Let’s look at the what is involved in the questions as it stands – ‘to be or not to be’. Hamlet is pondering his life and death however the decision he is really pondering, for those who don’t know the story is, does he remain quiet about his belief that his uncle killed his father, or does he confront his uncle. Consulting his uncle will likely result in his death. That’s how they rolled back in those days!

So, the true decision that we are assessing Hamlet’s ability to make is, does Hamlet confront his uncle or not?

Just like in the real world of social work practice it takes us time to establish just what decision Hamlet is attempting to make. Sometimes it’s not as obvious as it first seems.

But let’s take a step back. Do we have a legal right to carry out an assessment in the first place? Remember the first principle of the Mental Capacity Act states that a person must be assumed to have capacity unless it is established that they lack it. Do we have any right to step in here and assess Hamlets capacity to make this decision? What right has the state to interfere in Hamlets decision making.

Let’s think about the Diagnostic Test. First, we must ask is there an impairment or disturbance in Hamlets mind or brain? This is the first part of the diagnostic test. There are two possible answers to this question. Shakespeare can maybe help us with some evidence. He tells us Hamlet saw and talked to his dead father who explained to Hamlet that his brother (Hamlets uncle) murdered him and then took his place on his throne and in his bed with his wife (Hamlets mother). I would imagine Hamlet has had easier conversations in his life!! So, either Hamlet was communicating with his dead father or he was suffering from stress induced psychosis and the first part of the diagnostic test is met. Now, from a cultural perspective we cannot rule out that Hamlet could feel able to communicate with his dead father but realistically this is unlikely. Based on the balance of probabilities (which is what the test demands) Hamlet was suffering from an impairment or disturbance in the mind or brain. The MCA relies on the legal test of the balance of probabilities and not on the criminal law test of beyond reasonable doubt. If it was the later we would be required to do some detective work about the existence of ghosts in the 15^th century. Now, I’m not a psychiatrist, but, considering Hamlet lived some time ago and the events documented in Shakespeare’s play are more than likely fictional, I think I’m safe from any prosecution, so, I’m going to stick my neck on the line and say that I believe that on the balance of probabilities (and beyond reasonable doubt to be honest!) that poor Hamlet is suffering from stress induced psychosis.

Poor Hamlet has still though left us with a dilemma because there’s a second step to the diagnostic test. We are asking, has he got mental capacity to make the decision, to confront his uncle, or not? We can safely say he has an impairment of the mind or brain, however, does this meet the second stage of the diagnostic testis met? Namely, does his impairment effect his ability to make the decision?

The fact that he believes his dead father is visiting him and telling him to avenge his murder, and his murderer is his uncle who is now king of Norway and has illicit bedroom romps with poor Hamlets mother, is worthy of consideration. We are saying that the visions are a result of psychosis and he is troubled by them to such an extent that he is considering embarking on a course of action which he believes could end his life. The answer to the second question of the diagnostic test, does the impairment effect his ability to make this decision is surely yes. On the balance of probabilities, the impairment of his mind or brain is affecting his ability to make the decision to confront his uncle or not.

Diagnostic test met!

So now if we follow the Code of Practice we must move on to the functional test.  However, we need to pause before we rush into assessing poor Hamlet. How can we assess him if we have yet to establish what the relevant information pertaining to this decision is? If you’re thinking this is simply to live or die, you have not seen the play! Hamlet identifies many pieces of relevant information during his musing. Let’s break these down into the pertinent and relevant points that the law demands us do.

If we take a leaf out of Shakespeare’s book and write the relevant points in the form of a sonnet, we would be really overcomplicating the relevant points and making it harder for poor Hamlet to make a decision. We are applying the second principle here; A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

A practicable step would be to break down the relevant points, so they are as clear and concise as possible, therefore giving Hamlet the best opportunity to make the decision. Let’s break down Hamlets famous speech into the key relevant points.

Hamlet states;

To be or not to be, whether ’tis nobler in the mind to suffer the slings and arrows of outrageous fortune, or to take Arms against a Sea of troubles,

Hamlet is really saying: should I say nothing and brood for a while or take action against the murder of my father

And by opposing end them: to die, to sleep No more; and by a sleep, to say we end
The heart-ache, and the thousand natural shocks That Flesh is heir to?

Hamlet is really saying: Any action against my uncle will end in my death.

 ‘Tis a consummation Devoutly to be wished. To die, to sleep,
perchance to Dream; aye, there’s the rub,
For in that sleep of death, what dreams may come,
When we have shuffled off this mortal coil,
Must give us pause. There’s the respect
That makes Calamity of so long life:
For who would bear the Whips and Scorns of time,
The Oppressor’s wrong, the proud man’s Contumely,
The pangs of disprized Love, the Law’s delay,
The insolence of Office, and the spurns
That patient merit of the unworthy takes,
When he himself might his Quietus make
With a bare Bodkin? Who would Fardels bear,
To grunt and sweat under a weary life,
But that the dread of something after death,
The undiscovered country, from whose bourn
No traveller returns, puzzles the will,
And makes us rather bear those ills we have,
Than fly to others that we know not of.
Thus conscience doth make cowards of us all,
And thus the native hue of Resolution
Is sicklied o’er, with the pale cast of Thought,
And enterprises of great pitch and moment,
With this regard their Currents turn awry,
And lose the name of Action.

Hamlet is really saying: is there life after death?

If we used Shakespeare’s language to try and explore this most of us, I’d imagine, may be presumed not to have the mental capacity to make this decision as, I bet there are very few readers who understand all that Shakespearian narrative. There’ll be even fewer who can retain it all long enough to make a decision by weighing it all up. So, after a lot of poetic warbling from a self-obsessed man in his thirties we are left with the following relevant pieces of information that Hamlet needs to be able to understand retain and weigh, if he is able to make this decision

• Hamlet believes, he will suffer if he takes no action,
• If he takes action against his uncle he will likely die.
• His views on life after death?
• He may be experiencing a psychotic episode.

So, we now have our question – should he confront his Uncle or not? We have completed the diagnostic test and we have identified the relevant information. The question we need to ask now is can Hamlet understand the relevant information. And this brings us onto the next stage of the Mental Capacity test – a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

Can Hamlet understand the relevant points?

Based on his musing I am fairly confident that he understands the first three relevant points and there is further evidence from the play that he understands the concept of psychosis. Based on the balance of probabilities I would imagine anyone reading this would reach the same conclusion namely that Hamlet can understand the four relevant points in order to make his decision.

Can Hamlet retain the relevant points?

We did not identify anything in the second part of the diagnostic test that would suggest that Hamlet has any difficulty retaining information. Also, he went beyond retaining the relevant points when he retained an eloquent speech Shakespeare gave him which I cannot do despite years of attempts!! Based on the balance of probabilities Hamlet is able to retain the information long enough to make a decision.

Can Hamlet use or weigh up the relevant information

Clearly Hamlet could use the information and weigh up the first three points. He uses the English language to such beautiful effect to describe his weighing up. He is clearly weighing up the differences between living and dying, that is not in doubt. However, Hamlet is not taking into account his psychosis and therefore he is not taking into consideration the impact of this when making a decision about a course of action that will likely result in his death.  Therefore, based on the balance of probability he cannot use or weigh up the relevant information when making this decision. There’s the rub!

Can Hamlet communicate his decision?

Hamlet does later in the play, although not simply or directly, however, he eventually makes a decision after much procrastination and decides to confront his uncle. Therefore, based on the balance of probability Hamlet could communicate his decision.

Overall, I’d suggest, based on the balance of probability Hamlet was unable to make a capacitated decision regarding whether to confront his uncle, or not. Hamlet did confront his uncle, and [spoiler alert] after watching the play it could be argued this was not the best course of action. If we did apply the Mental Capacity Act to Hamlet the best interest decision would definitely not be to support him to confront his uncle in the way that he did. I believe a best interest decision would be for him to receive support from mental health services and possibly some family group work may have been in his best interests!

There’s one thing we haven’t yet considered. Was the decision he made to confront his uncle a wise or unwise decision and was he exercising the third principle – A person is not to be treated as unable to make a decision merely because he makes an unwise decision?

The answer is of course no. He did not have capacity to make the decision so it could not be an unwise decision. Hamlet made an incapacitated decision not an unwise one. If he had capacity and confronted his uncle, given the possible ramifications, it could be argued that his decision was unwise.

[Spoiler Alert!] Hamlet and almost everyone else in the play die in an horrendous tragedy. If the Mental Capacity Act had been around in Denmark in the 14^th century it could have been a different story and we would not have had the play Hamlet or the Disney movie The Lion King, which had a somewhat happier ending. After writing this and spending far too long thinking about applying modern English law to a fictitious situation in mediaeval Denmark, I have come to the conclusion that further analysis is required! Would the Mental Capacity Act be the appropriate legislation for the situation? If it were would a best interest decision lead us to Deprivation of Liberty with Hamlet locked up in a tower!? That discussion is for another time! Surely though the Mental Health Act should have been used in this situation, don’t do you think?

Jamie Scorer
Jamie has worked in social care for 30 years. He is a qualified social worker, and currently works in a local authority as a senior social worker in a MCA/DoLS team. Jamie also works as a visiting lecturer with local universities