Mental incapacity, disability and rights Flashcards
What are rights?
A justified claim or entitlement, and a special form of moral claim.
What are moral rights?
A right with a moral basis or justification i.e. justifications concerned with what is right and wrong e.g. right not to be killed or tortured.
What are negative and positive rights?
NEGATIVE: are about what others may NOT do to us; POSITIVE: what others must PROVIDE for us e.g. education and healthcare.
Arguments concerning whether healthcare is a moral right?
If healthcare is a moral right, this imposes an obligation on others to ensure adequate healthcare is provided to all humans. However, at a global level, who are these others with whom the obligation rests? Without the institutions to deliver these obligations, a right to healthcare is an empty entitlement and arguably no more than political rhetoric.
Ms Y is a 46-year-old woman with severe learning disability and a mental age of 2. She has lived in residential care since the age of 15. She cannot speak and needs assistance with all aspects of self-care. She seems particularly close to her eldest sister. In 2000 Ms Y’s oldest sister developed acute leukaemia. Her prognosis was extremely poor unless a suitable bone marrow donor could be found. Ms Y was a suitable match. Should Ms Y be a bone marrow donor for her sister? (x4 arguments)
- YES, the risks to Ms Y are minimal.
- YES, it’s in Ms Y’s best interests.
- FOR THE ABOVE ‘YES’ ARGUMENTS – A CONSEQUENTIALIST APPROACH: being a bone marrow donor is of minimal long-term risk to Ms Y; Ms Y’s sister will die without a bone marrow transplant; therefore, bone marrow should be harvested from Ms Y.
- NO, it’s an unacceptable breach of Ms Y’s rights – she cannot give consent. Ms Y has the same rights as her sister and has a right to freedom from harm and interference (bodily integrity). Unless it’s in the sister’s best interests.
- NO, it’s not in her best interests.
Ms Y has a close relationship to her sister that is very valuable to Ms Y. Knowing this, should Ms Y be a bone marrow donor for her sister?
This question is an issue of best interests – as highlighted by the above arguments. Given how close of a relationship Ms Y has to her older sister, saving her sister’s life through a bone marrow transplant would mean that Ms Y was not simply being ‘used’ to save a life. In which case bone marrow should be harvested from Ms Y, as it would be Ms Y’s best interests. Losing her older sister could have a detrimental impact on Ms Y’s long-term emotional health.
What are the disadvantages of the consequentialist approach to non-therapeutic interventions in incapacitated individuals?
If we apply this approach, it also suggests that we have rights to harvest bone marrow to help STRANGERS too. However, this would not be in an incapacitated individual’s best interests, as the outcome of the donation on the stranger will have no impact on the donor. We would simply be ‘using’ the incapacitated individual.
Given the scenario with Ms Y, when is a ‘rights-based’ argument acceptable justification for an ethical decision? !!!
Must be in the BEST INTERESTS of the donor.
What should be considered when deciding best interests of a patient?
Prognosis, welfare of the family, expressed wishes, quality of life, risks of treatment, individual rights.
What is precedent autonomy?
When previously expressed interests are made, and followed when a person no longer has the capacity to express their interest. This precedent could be against the individual’s best interests at the time e.g. DNR is a precedent autonomy.
Mr E. Kenieval is a 42-year-old motor cycle enthusiast. He is injured in a major accident and is in a coma for 2 weeks. There are initial concerns that he may not walk again. However, after several operations and many months rehab he makes a full recovery.
- Following this experience, he draws up an Advance Decision with his lawyer stating that he refuses life sustaining treatment should he, for any reason, become incapacitated such that he is dependent on others for his daily needs with no meaningful prospect of recovery.
- 14 months later Mr Kenieval collides with a van at a roundabout.
- He suffers severe brain injury leaving him unable to talk or understand even simple commands. He is now in a nursing home, dependent on others but seems quite happy.
- He develops a kidney infection, treatable with antibiotics. Without antibiotics he is likely to develop septicaemia and may die.
Should Mr Kenieval’s kidney infection be treated? (x2 arguments)
- NO: Under the Mental Capacity Act, Advance decisions drawn up when an individual is mentally competent are legally binding. This is probably the most controversial part of the Act.
- YES: Depends on mental state after the accident. That now, since their brain-altering condition, they seem happy, so we should reasonably treat him.
What is the right to self-determination?
The right to determine your own destiny.
What are the legal grounds for an abortion? (x4)
- The pregnancy is less than 24 weeks and that the risks to the physical and mental health of the woman or any children in her family are greater if the pregnancy were continued, OR;
- It is necessary to prevent grave and permanent injury to the mother, OR;
- Continuing pregnancy would involve a greater risk to the life of the pregnant woman than termination, OR;
- Substantial risk of serious physical or mental handicap.
How do abortion and disability rights potentially conflict? How is this argument counteracted?
- Law permits abortion is there is substantial risk of serious physical or mental handicap. Down’s syndrome accounts for 20% of abortions performed on the grounds of ‘serious handicap’. This implies that those with disability have a lesser claim on a right to life. Do these grounds reinforce prejudice against those with a disability?
- However, having a severely disabled child can put immense physical, emotional and financial strain on parents. Other children in the family may suffer as a result of this. Therefore, a woman IS justified in aborting their disabled child through other abortion law clauses.
How do arguments relating to disability, choice and autonomy weigh up on abortion?
- As moral agents, mothers should make morally acceptable decisions
- Autonomous decisions should be respected provided they are morally acceptable
- Autonomous choice requires that we are given a reasonable range of options
- If society fails to ensure justice and provide an adequate level of support for those with disability does a woman have a reasonable range of options?
