Interests of Patients with a Lacking of Mental Capacity - Essay Example

? Medical Law Best interests of patients with a lacking of mental capa The paper discusses the problem of best interests of patients with inability to make their decisions because of their lacking of mental capacity. It is claimed that ethical concerns, as well as legal aspects of this issue are of the high importance for modern medical personnel. Key words: mental capacity, mental impairment or disturbance, best interests of patients, strategies of decision making. The paper is focused on considerations about “the best interests operation” in relation to people with mental disabilities. There is a need to act together in the name of the best interests of the people with mental disabilities. In accordance with the Mental Capacity Act (the Act) 2005 “any act done or decision made on behalf of an adult lacking capacity must be in their best interests”1. Such life aspects as financial, health and social care issues can be resolved from the perspective of the best interests of people with mental disabilities. Mental Capacity Act (1983) is another legal authority, which should be followed in the process of dealing with a lack of consent or mental capacity of the patients. It should be noted that consent occurs if the patient is properly informed about the potential medical treatment and is able to agree voluntarily without fraud upon it. In terms of mental capacity, a patient should be well-informed about different processes and results of medical treatment, but it should be noted that a patient may be capable in one sphere and lacking of mental capacity in making critical decisions. In accordance with Section 4 of this Act, there is a need to assess mental abilities or disabilities of a patient within 72 hours. The closest relatives or AMHP with one doctor’s support is essential to make some conclusions. Another doctor’s confirm should be received within 72 hours. A compulsory medical treatment of a patient is possible only under regulations of the Mental Health Act (1983). There are different aspects to be considered, such as brain surgery or electroconvulsive therapy (ECT). The Mental Health Act Commission can provide a patient with an independent opinion of an appointed doctor. The following overview of the case on mental capacity 2 tells us as follows: H’s was incapable in different ways and there was a need to solve his future destiny and take care of her. There was a need to improve her consent with regards to sexual relations and there was a need to prevent restrictions imposed on her liberty. Test determining mental capacity of a patient, enabling him to make relevant decisions is based on the following basic principles: first of all, it is necessary to determine whether a current turbulent state of a patient is an impairment or disturbance. Moreover, whether brain functions of a patient is damaged or not or whether a patient is able or unable to make some decisions by him or not. Therefore, it is relevant to weigh decisions and possible ways of communicating potential decisions. There are many different cases, when patients are lacking of mental capacity. Very often patients are in comma or they may suffer from “locked-in syndrome”. In case a patient is unable to communicate his decision, such sings as blinking or squeezing a hand may be positive signs. Therefore, the specialists of verbal and non-verbal communication are relevant in the field of such kind of patients. There is a need to take into account personal concerns and interests of a patient in order not to violate them in the process of decision making. It should be noted that medical personnel of the hospitals is always focused on life benefits of potential medical treatment of a patient or a potential possibility to save his life. Of course, it is necessary for the doctors to assess the capacity of the patients. First of all, it is necessary to assess the written records about a patient’s health conditions; to involve independent decision makers, take care of hospital complaints procedures, to organize case conferences and if necessary to apply for the Court of Protection3. Moreover, in accordance with the modern medical regulations and ethical concerns of the modern medical world, it is relevant to take into account various factors, such as psychological factors and health-related issues. In order to make the best solution with respect to the best interests of the patient, it is necessary to refer to past experiences and wishes of the patient, as well as his current fishes and desires. Moreover, different factors may exert influence on the process of decision making and consider about the issues, which would be relevant to the patient in case of his capacity. First of all is to have objective reasons for decision making. Different circumstances relevant to the best interests test and procedures should be as follows: there is a need to encourage the person lacking capacity to make the right decision. For this purpose it is possible to implement different technologies and methods, which facilitate the process of communication. The second measure to be taken is not to focus on a person’s age, behavior or appearance. Physical appearance cannot reflect all the difficulties experienced by the person lacking capacities. For example, his appearance may reflect physical disabilities or impacts of drunkenness or unconsciousness. It is relevant to identify the deepest challenges experienced by the person and its impact on potential decision making in his best interests. There is a wide range of various options determining the lack of capacity of the patient. On the example of life-sustaining decisions, it is possible to illustrate ethical and legal implications of making decisions instead of a patient lacking of a mental capacity. Medical treatment of a patient should not be guided by a desire to bring about death of a patient. It is much relevant to show whether medical treatment practices are essential and whether they are effective or not for the future of the patient. A choice of medical treatment should be developed in accordance with the best interests of a patient. Moreover, opinion of family members should be also taken into account by the doctors. Thus, there is no need to implement life-sustaining practices in case they are violating best interests of the patient. The MPS can be contacted in order to clarify the options of the best decisions making or to the Court of Protection. In accordance with the Mental Capacity Act (2005) it is necessary to take into account past experience of a patient. For example, if a patient had strongly-held views in the past, his further treatment may be shaped in accordance with these issues. Written statements should be provided with regards to the wishes and desires of a patient. It should be noted and outlined in a written form, which decisions should promote the process of treatment. It is possible to illustrate a positive effect of written records on the example of Khalid. He wants to ensure people around him that he needs people surrounding him to provide him with help in his daily life. He asks to write down his wishes about food in order in his future he gets food he asked for. He is afraid of losing even more mental capacity in the future and he needs additional support and communication. As it is outlined by in the current research on best interests of such kind of patients, past and present beliefs and values of the patients lacking of mental capacity should be taken into account. Religious, political and cultural background is influential in the process of decision making instead of a person lacking of mental capacity4. We can summarize that different determinant factor influencing the process of treatment should be considered by the doctors. There are people around a patient with mental disabilities, i.e. dependants, whose interests should be also taken into account by the doctors. Therefore, in order to act in the best interests of the patient, it is necessary to take into account the interests of people around the patient. There are different options of discussions about the future treatment of a patient with mental disabilities, but if there is no concrete answer or in case the doctor is puzzled, he may appeal for Mental Capacity Advocate (IMCA). The doctors should be greatly concerned about confidentiality of treatment. In this field the doctor may find help in the face of the Information Commissioner or MPS5. On the basis of witnesses of a patient and his best interest protection, further developments in treatment should be implemented. The best interests’ principle has the following exceptions: “If the patient made an advance decision to refuse certain medical treatment whilst they had capacity and there is no reason to believe they subsequently changed their mind” or involvement in the process of research6. Mental disabilities of the patients prevent them from making right decisions and it is necessary to take into account different aspects of any case to be solved. In accordance with the recent developments and considerations of the Law Commission even a temporarily inability of a patient to make his own decision or inability to communicate his own decision is the reason for making decisions in his best interests. The capacity is evaluated in relation to the issue of a current decision. In order to evaluate a person’s mental capacity to make decisions, it is possible to retain the information relevant to the decisions to be made; to believe into information; to weigh the information about mental capacity of the patient in order to make the most correct decision. The underpinnings of the best interests test are the following: a patient, who lacks of mental capacity, must be clarified by different means information he needs, understand it and retain this information. A patient, who is suffering from his inability to solve his own destiny, should be able to analyze it with the help of others, weigh it and arrive at common perfect decision. Moreover, mental capacity can be considered in dynamics, because: “A vulnerable adult’s mental capacity may fluctuate or change over time. All assessments of a vulnerable adult’s capacity should be recorded in their written record case file”7. As we have already mentioned, written records are the best way to fix changes of mental capacity changing in the course of time. In the UK the test if the best interests of the patient with mental disabilities is described in the following way: in case it is necessary to save life of a patient or to improve his physical or mental conditions, then the responsible body or medical opinion is dominant to determine a potential form of treatment. Of course, it is very difficult for medical personnel to arrive at the perfect decisions and develop their future medical treatment with respect to the patient’s best interests, wishes and concerns. Nevertheless, from the ethical perspective a human life is the highest value and in any case it should be supported by the doctors and families of patients with mental disabilities to make decisions themselves. For example, very often patients lacking of mental capacity are unable to make decisions, which are vital for their future lives. For example, they are able to tell what they want to eat, but when it goes about a kind of surgery, which is of vital importance for their health, they may be confused. The following case study provides us with the example, when Jamil, an adult experiencing learning disabilities needed heart bypass surgery. He has no parents or family and there are no friends around him. So, who would make this vital decision? The doctors appealed for the IMCA in order they could make this decision. The main obligations of an IMCA are as follows: • to sustain a patient, who is lacking of a mental capacity and transfers his interests to his decision-makers; • to collect and assess information about a patient. Both orally collected data and data collected in a written form are reliable factors about health conditions of a patient; • to make analysis of a patient’s wishes, emotions and feelings; • to develop different strategies of further decision making process; • make a written report on data collected about a patient8. In case relatives or family members make certain decision, which is not in compliance with IMCA regulations, they may challenge this decision. On the one hand, the process of decision making in the name of the best interests of the patient is not so challenging, in case there are relatives or family members around the patient. In case he is alone, the regulations of Mental Capacity Act (2005) or Mental Capacity Bill (2007) represent a perfect guidance for the behavior and right decision making in the name of the best interests of the patient. The most challenging issue is that mental capacity may be fluctuating and different decisions can be made during a different period of time or patient can make decisions concerning their daily lives, but they are unable to solve something more vital and complex. The first point for development of decision making process, when the best interests are relevant is: “if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.9” On the example of case study, Munby J goes claims that in terms of the process of jurisdiction involvement to the decision making process. Conclusion Whether decisions should be made for an adult or a child, in any case it is relevant to take into account wishes and interests of adults and children. There are many guiding factors, which determine future of patients with a lacking of mental capacity. From the perspective of ethical considerations, decision making in the name of the best interests of the patients. It is necessary to underline life as the greatest value and a patient, his family, relatives and doctors should be aware of the positive effects of treatment, which are possible outcomes of right decision making process. Reference List Best Interests Test. (2010). http://www.medicalprotection.org/Default.aspx?DN=20a12e8b-943e-428a-93cc-aa27ca6cc630 Capacity, Consent and Best Interest. http://www.eastsussex.gov.uk/NR/rdonlyres/5E98CCF8-044A-4D8C-A6D9-F3E56D52CE57/0/Capacityconsent_bestinterest.pdf Making Decisions: The Government’s proposals for making decisions on behalf of mentally incapacitated adults. Lord Chancellor’s Department. (October 1999.) Mental Capacity Act. (2012). http://www.justice.gov.uk/guidance/protecting-the-vulnerable/mental-capacity-act/index.htm Other Aspects of Consent. (2012). http://www.medicalprotection.org/uk/guide-to-consent-in-the-uk/other-aspects-of-consent Re H; A Local Authority v H (2012) EWHC 49 (COP), (2012) MHLO 3. Read More