Mental Capacity - Ethical And Legal Considerations Flashcards
Mental capacity act 2005 (MCA)
Provides a framework to empower and protect people who may lack capacity to make some decisions for themselves
MCA -5 statutory principles
Presumption of capacity - an adult is assumed to have capacity to make a decision unless proven otherwise
Right to be supported to make their own decisions - all practical help to make decision for themselves using different forms of communication , providing info in more accessible form , treating a medical condition that affects a persons capacity and having a structured programme to improve capacity
Right to make eccentric or unwise decisions - people have right to make a decision that others might see as unwise -everyone has their own values , beliefs etc so right to make unwise decision for themselves
Best interests - decisions made for a person who lacks mental capacity has to be made with their best interests in mind
Least restrictive action - interfere less with a Persons right of freedom action
Continued …
Patients must be supported and not assumed to lack capacity solely on basis of age , appearance or condition
But we need to be mindful of fact that there will be times when a patient is unable to make decisions for themselves (dementia , stroke ) Two questions :
1- what is mental capacity ?
2- If capacity is lacking , how are decisions about patients to be made ?
What is mental capacity
Purpose of mental capacity determination ( to determine whether a person should retain decisional authority or not - should continue to posses the right to make decisions for themselves or someone else make it for them )
Person has capacity if they are able to make a particular decision at the time the decision needs to be taken
Capacity determinations are governed by the MCA 2005
Criteria for capacity , MCA
A person lacks capacity of due to an impairment of our disturbance in functioning of mind or brain they are unable to:
Understand
Retain
Use or weigh
Communicate decision
Some observations
Task specific - a person may be able to make decisions for one form of treatment and not for another so have to consider for each specific task
Can vary over time
Ability to understand
Silent on how info is used or weighed
Where a patient lacks capacity ?
Presence of an advanced decision ?
Otherwise back to 4th and 5th statutory principles :
Decisions must be made in the patients best interests
Decision must the least restrictive action available
Advanced care planning
Two aspects :
Advance statement of wishes
Advance decisions to refuse treatment
Advance decisions / directives
Purpose of ? Relate to autonomy
Advance decisions only empower patients to refuse
Advance decisions are legally binding if valid and applicable
Patients cannot refuse basic care
Advance decisions : pros
Respect patients choice and autonomy
Encourages openness and forward planning
Legal right to refuse treatments
Less anxious about unwanted treatments
Advance decisions : cons
Difficulties verifying patients opinion hasn’t changed
Ascertaining circumstances are what patient foresaw
Possibility of coercion when making out AD
Can patients imagine future situations sufficiently vividly
Ethical issues discussed in bioethical literature
1- if a person lacking capacity is very happy despite their loss of capacity , should an AD refusing life saving treatment apply in their case ?
Experiential vs critical interests (Dworkin)
2- is a person who undergoes severe personality change as a result of dementia the same person who made out the AD
If not should the AD still be binding ?
Personal identity argument against ADs
1- ADs should be binding only if the level. Making out the AD is numerically identical to the person who has dementia
2- the author and the person with dementia wee not numerically identical because they psychologies are radically different
Therefore ADs should not be binding for people with dementia
Conclusions
All adult patients are presumed to have capacity
Patients must be supported in the decision making
Mental capacity act provides legal framework to empower and protect people who may have compromised capacity
Where capacity is lacking decisions should be made in best interests
Advance directives and statement of wishes are useful for decision making and seek to preserve patient autonomy
Should advanced decisions refusing treatments have the same stress as the contemporaneous consent of a competent adult
