The Inclusion of Advanced Decision under the Mental Capacity Act 2005 - Term Paper Example

The Inclusion of Advanced Decision under the Mental Capacity Act 2005 Student Name Institution Date Table of Contents Running Head: INCLUSION OF ADVANCED DECISION UNDER THE MENTAL CAPACITY ACT 2005 1 The Inclusion of Advanced Decision under the Mental Capacity Act 2005 1 INCLUSION OF ADVANCED DECISION UNDER THE MENTAL CAPACITY ACT 2005 2 Table of Contents 2 Introduction 2 The Nature of Capacity 4 Capacity Assessment under the Mental Capacity Act 2005 5 Ethics of the Maternal Mental health 8 Capacity to Consent to or refuse treatment 8 Protection of the Vulnerable Adults 11 Conclusion 14 Introduction The Mental Capacity Act 2005 permits all competent adults to make their own advance decisions regarding the acceptance or refusal to medical treatments. It is apparent that such decisions must be documented, unless the life-sustaining treatment is rejected, yet the decisions made should be written, witnessed as well as signed to include an explicit and signed statement that confirms the refusal is applicable. This is even in situations where life is observed to be at risk. The Advance Directive is defined as a written document provided by competent persons, as regards their health care decisions or preferences. Such directives include a living will or a long-lasting power of the attorney to maintain health care provisions. It has been examined that for an advance directive to achieve its intended objectives or purpose, it must be legally recognized and made readily available in case of its need as well as be legally effective. While some governments highly value the need to make a clarification on the legal status advance directives are identified with and be legislated within the health care domain, other nations are increasingly lagging behind. Therefore, Alzheimer Europe urges the governments as well as their legislators to have a legal recognition of advance directives, to give some guidance on their application and to develop a registration system for advance directives. This implies that Alzheimer Europe as well as its member organizations greatly recognizes their role in increasing the awareness of advance directives (Merakou & Tragakes, 1999). Protection of adult autonomy is a principle seen to be at the center of the right of more competent persons considered able to make their own advance directive. Such decisions enable the individuals to either accept or refuse life-sustaining medical treatments. However, to ensure that such advance directives compliable with the medical professionals, the right needs to be protected by common law and legislation enacted in U.K and in various jurisdictions in Australia. Therefore, Mental Capacity Act 2005 which covers England and Wales provides a more statutory framework, specifically for persons with less capacity to make their own decisions. This implies that the act articulates advance statements that provide general indication of a person’s wishes identified with less legal binding in certain cases. Dignity in Dying has become the most important provider of advance decisions, commonly referred to as living wills (Hale, 2007). The act protects an individual’s valid and applicable some advanced decisions which are made prior to losing capacity. However, the person should be over 18 years of age when making decisions, particularly related to refusing treatments such as the life prolonging measures. Advance decisions, therefore, are specific declarations made by adults which reflect their capacity in making decisions about the kind of treatments to receive. Therefore, adults who have the capacity to comprehend the decisions they make, are entitled to the legal right to reject treatment. Although, they can weigh up the risks, burdens, benefits as well as the overall acceptability of a given treatment, the right to reject is enshrined in law. It is also stated that capacitated adults are legally accepted to refuse some medical treatments in advance through advance decisions. This is to enable their wishes be recognized in case their capacity to articulate them in the future is lost. This right is enshrined within the Mental Capacity Act 2005 that fully came into use in 2007 (Mental Capacity Act 2005, 2007). The Nature of Capacity Respect for the principle of autonomy is highly considered in the consent. It has been argued that an autonomous individual is a person of adult years as well as of sound mind. Such a person may decide to act based on his or her own thoughts and weighing up. Based on treatment decisions, this particular person or patient has the final power to either accept or in adult’s case, controversially reject the recommended treatments. Therefore, in law such a legally known and ultimate decision-making patient’s right is considered as his or her personal capacity for the self determination. This means that autonomy and self-determination rights are the key moral equivalents considered in law as capacity. It was of great importance, therefore, to have a test for capacity set through which a standard for acceptable balance between the protection and maintenance of respect for adult autonomy, on the other hand, the provision of the required medical care was maintained (Wilson, 2007). Capacity Assessment under the Mental Capacity Act 2005 The main issue that contributed to the establishment of the legal basis through which an adult patient without the mental capacity acquire medical treatment, has to a larger extent been addressed by various courts for over years. Certainly, the House of Lords developed this basis which focused on the best interests of a patient. The Mental Capacity Act 2005 has set a single statutory test that is used for assessing capacity among the adults of over 16 years of age and it is applicable to a number of decisions made in healthcare and finance sectors. Therefore, advance decisions to reject medical treatment under the Mental Capacity Act 2005, are legally binding since the Act provides more clarifications to the issue advanced decision-making to refuse or acquire medical treatment. Health professionals are legally obliged under the Mental Capacity Act 2005 to abide by valid as well as applicable advance decisions. The Act's Code of Practice clearly states at 9.57 that healthcare professionals have to follow an advance decision provided that they acknowledge its existence, validity as well as applicability to their situations (Mental Capacity Act 2005, 2007). It is true that the inclusion of advanced decisions under the Mental Capacity Act 2005 reflects the Acts main objective is to main respect for adult autonomy. However, any decision made for the non-competent adult should be in the best interests of the patient as stated under the Act. In the Act, a legislative confirmation is first made to assess that an adult or a person aged 16 years and above has the full legal capacity to make his or her own decisions, a right to autonomy. It is also stated in the Act that such people need to be supported with all the appropriate support to aid them exploit their participation in decision-making process. The fundamental philosophy of the Mental Capacity Act 2005 is to ensure that any action taken on adults who are limited with the capacity to make their own decisions and to best of their interests. It has been examined that not only the laws and legislations which recognizes the right of capacitated adults to refuse the medical treatment, but also empirical body of literature associated with disciplines of philosophy, law as well as medical ethics support the principle of autonomy. A failure to recognize respect for adult autonomy may lead to significant implications, particularly for liberal democracy. For instance, decisions to reject treatment, indicates that the supremacy of physical integrity would be considered to be at risk (Wilson, 2007). The common law in particular, the Mental Capacity Act in both England and Australia has been articulated which states that a competent adult has the right to refuse any medical treatment. This is irrespective of whether or not the treatment is considered necessary for his or her life. Additionally, capacitated adults have the right decide on the directive through which the treatment is to be administered and which to receive in the future in case the capacity to decide on the type of treatment is lost. On the other hand, medical professionals without the capacity to comply with the decisions made by the adult patients to reject the treatment are considered reliable to civil as well as criminal sanctions. Therefore, it is important to note from such legal principles that incidences of advance rejection of the life-sustaining medical treatment, the code of respect of adult autonomy outweighs the life sanctity (Hale, 2007). The medical position within the U.K is totally different as stated in sections 24-6 of the Mental Capacity Act 2005. It is different from the provisions of South Australian Statute because the coverage is more comprehensive. In United Kingdom, there is regulation of all types of advance refusals of medical treatment. The idea that a competent person has the right to refuse treatment without necessarily receiving all the required information as well reflects the reality about life. This implies that an individual could be having a life-threatening disease, but can decide not to seek any medical advice or to reject the medical treatment offered. Provided the adult is competent enough, the decision made on not to seek for or definitely to reject the medical treatment is clearly presented as a valid decision. There is no standard reason to base on that an adult should be more knowledgeable about the relevant facts on the disease or treatment options (Lord Chancellor’s Department, 1997). Based on the effect of Statutory Reform of the Mental Capacity Act 2005, it has been noted that although in the United Kingdom, an adult is encouraged to have a discussion on advance directive with his or her own medical professional, a number of them do not invalidate the advance directive. However, the position is totally different in Victoria, Australia where medical professionals are required to certify that an adult is well-informed about his or her own medical condition to the degree that is considerably sufficient to enable such a person to make a decision about rejecting the medical treatment (Mental Capacity Act 2005, 2008). Ethics of the Maternal Mental health Protections for autonomy are practiced in different legal considerations, for instance, adult decision-making capacity stated under Mental Capacity Act 2005 in England and Wales. Based on ethics of the maternal mental health perspective, traditional debate on autonomy needs should be reconstructed. This is because such debates do not argue for the significance of relationships, but observe autonomy as a state of being independent. However, many feminist as well as communitarian writers have argued that a mother, who is invested within her parental role, gets attached to her social role as a parent and to the children which becomes the core values of her life. This means that her autonomy is not necessary constituted through her ability to break up from her own children, but rather within the existing security in their relationships. Therefore, respect for the mother’s autonomy requires great support in her parental role (Mackenzie & Stoljar, 2000). Capacity to Consent to or refuse treatment The act provides an expressive permission for an adult to undertake continuous participation in a study event of capacity losing to give consent. It has been argued that the less capacitated an individual become, the less consistent is the test. However, the most autonomous decision is given first priority in the moral right respect. Today, doctrines for human rights accord more significance to the self-determination principles as well as respect for autonomy, and thus medical laws greatly reflect such principles. The inclusion of advanced decision in the Mental Capacity Act, suggests that every adult is respected and permitted to make own decisions provided that he or she has the full capacity to take that action (Mental Capacity Act 2005, (2008). Therefore, an adult is presumed to possess the capacity to either consent or reject treatment except if there are some evidences to the differing. This means that the concept of capacity is crucial to the law of consent as well as in courts in devising their criteria on which to establish the availability of capacity situations where the primary opinion is totally challenged. There are difficulties associated with the identification of values enshrined within the statutory requirements that concerns how vulnerable adults are used in investigations. The Mental Capacity Act is more applicable to invasive research with the exception of clinical drug trials stated under the Medicines for Human Use Regulations 2004 (CTR) as the implementation of the European Directive 2001/20/EC. This implies that a patient’s wishes are more significant to the final decision made on research entry, though they undertake different weights (Mental Capacity Act 2005, 2008). The Act protects both valid and applicable advance decision of a person, particularly those which are made prior to losing capacity. However, the person must be over 18 years of age when making the decision. In all instances of advance decision-making, it has been examined that well-rehearsed philosophical as well as regulatory problems are more noticeable. For instance, in the normal cases of autonomous people it is considered ethically legitimate to change a person’s mind. This is not applicable to incidences where evidence on change of mind seems to be whimsical and made without appropriate reflection. Therefore, the Mental Capacity Act is of great importance because it speaks more on advance statements that provide a general indication of an adult’s wishes which are less legally binding in certain cases. For example, adults identified with the capacity to comprehend decisions which they make are entitled to the legal right to reject treatment. This means that such individuals can weigh up the burdens, risks, benefits as well as the overall acceptability of a given treatment. However, the right to reject is protected in law, whether or not it may lead to his or her death (Mental Capacity Act, 2008). Capacitated adults also are legally entitled to decline medical treatments more in advance through advance decisions. This is in order for their wishes to be recognized in case they lack the capacity to state them in the future moments. In the English medical law, the Act states that adult patients are not required to accord to a given doctrine they are not satisfied with, provided they can make their decisions without any positive involvement of a third party. In cases where the intervention of a third party is required, it becomes automatic that the principles of autonomy will be hampered through criminal, civil or public law issues (Mental Capacity Act, 2008). Protection of the Vulnerable Adults The expansion of the inherent jurisdiction of protecting the vulnerable adult indicates that whether or not the Mental Capacity Act 2005 will replace the intrinsic jurisdiction, particularly in cases related to the mental capacity goes recognized. However, its introduction is not a threat to the continued operation of the inherent jurisdiction of High Court. Most of the recent judgments have taken into consideration the different contexts through which the inherent jurisdiction is invoked. Such judgments extend the scope of involvement beyond the mentally incapacitated adults and incorporate a far broader group that includes both men and women identified as vulnerable (Dunn, Isabel & Holland, 2008). In re-considering how the protective interventions made for adults judged capacitated to make their own decision can be justified on stronger ethical foundations to void vulnerability or risk as the potential dilemmas, it has been argued that both inherent and the situational accounts of the issue of vulnerability connect with only limited aspects of the human vulnerability. In the attempt to invoke the protective interventions for the vulnerable adults, the need to act seems to take priority over the call for respecting decision-making autonomy, particularly when the act of self-determination is considered to be more threatened. Therefore, assessment of the threats to adult vulnerability, based on inherent as well as situational accounts of the existing vulnerability, is developed on both external and the objective identification of specific risks posed to a person’s decision-making autonomy (Wilson, 2007). Most of the issues pointed out through the structuring of the vulnerable adult within the law as well in public policy are essentially directed to enduring the challenge of harmonizing the protection implemented against empowerment. Contrary to the Mental Capacity Act 2005, the codes of which supposes the mental capacity as well as creates an obligation to maximize the required capacity to facilitate an autonomous decision-making process as far as it is practicable, superseding for the vulnerable adult seems to undertake a more or less empowering approach. Therefore, cases for vulnerable adult raises the concern that a judgment made on a person whether or not has the required capacity to make some autonomous decisions is an inconvenient legitimacy. This is particularly when such an individual is also seen to be at a high risk of being hampered, intimidated, or unduly influenced. The call for clarifying the procedures for public law protection of the mentally incapacitated as well as vulnerable’ adults were initially stated by the Law Commission within their introductive analysis to makes reforms on mental capacity law in 1990s. This was later on published in one of the four major consultation documents that focused on the establishment of reserve decision-making powers for the mentally incapacitated adults (Dunn, Isabel & Holland, 2008). A Critical view of whether the advanced directives can ever be, in practice, legally binding A good number of the contemporary medical ethical issues or problems are occurring as a result of unbridled and uncontrolled autonomy. It has been argued that it is easy for an adult to demand rights but turn out to be irresponsible. The question is how the balance between rights and responsibilities applicable to the issue of whether Advance Directives can be in practice legally binding. Although Advance Directives play a great role in principle, but the best of their activities are more dangerous in practice. Thus, they should never be considered legally binding as discussed in three types of difficulties (Shickle, 2006). Impossibilities of implementation Advance Directives are perceived to be sort of contract that call for responsibilities from both the participants. In the UK, the British Medical Association (BMA) a body that represents a number of British doctors does not accord the force of law to Advanced Directives. Timing is one of the major practical problems and reasons feared by doctors who greatly believe in patient autonomy, arguing that the legally binding Advance Directives may reduce the existing autonomy. It is difficult to determine the exact time to implement Advance Directives without a clear and identifiable trigger event, resulting in incompetence due to people not being capable of making their own choices or wishes. The problem of consent is yet another major difficulty. The question is how individuals could manage to precisely predict future situations. It is difficult for a person signing some Advance Directives while in good condition, be in a position to anticipate all the future health situations that may occur or how the new medical treatments impact future situations. An argument is also made that people often forget to update documents and so could be with Advance Directive documents (Helga, 2000). Diagnosis and prognosis is also a problem associated with the implementation of Advance Directives. Doctors in the UK suggest that there should a considerable measure of flexibility in the interpretation of Advance Directive documents. This is because patients diagnosed with terminal cancer can also have terminal illness and can die of any disease. For this as well as other related practical reasons, UK doctors call for a more flexible approach to interpret Advance Directive documents since a law letter within a legally binding Advance Directive may not be safely followed. It is apparent the law exists as a blunt instrument to be used in the sensitive decision-making processes required at one’s end of life. Changed minds are the final problem discussed in this aspect. It is difficult to determine whether or not people can really predict their feelings. This is simply because the healthy individuals do not make decisions or choices in a similar way the sick do. The moment people become unwell, they change their outlook. However, the earlier Advance Directive could be still in force causing negative images due to increased passports to euthanasia in societies. Therefore, Advance Directives that are legally binding are very difficult to implement safely and can reinforce more negative images (Violeta, 2010). The legal implications of advance directive documents indicate that they are highly vague. For instance, Article 9’s statement previously expressed as wishes shall be considered is in particular a problem. This implies that advance directives could at least have some advisory effect, and indication that European countries need not to assign to such documents the legal binding status. It has been argued that the provision of advance directive does not come with a clear guidance on measure, or under what circumstances, ought to advance directives be taken into effect (Merakou & Tragakes,1999). Conclusion Respect for adult autonomy is crucial in the modern medic al ethics as well as in law and is symbolized within the requirements of an informed consent used for medical intervention. The key theoretical rationale for the implementation of advance directives is to improve patients’ autonomy. Autonomy and self-determination rights are the key moral equivalents considered in law as capacity. Advance decisions to reject medical treatment under the Mental Capacity Act 2005, are legally binding since. This is because the Act greatly clarifies the issue of advanced decision-making to refuse or acquire medical treatment. The fundamental principle of the Mental Capacity Act 2005 is to ensure that any action taken on behalf adults who are limited with the capacity to make their own decisions and to best of their interests. Lack of the ability to recognize respect for adult autonomy may lead to considerable implications, particularly for liberal democracy. The medical position in the U.K is different as stated in sections 24-6 of the Mental Capacity Act 2005, from the provisions of South Australian Statute due to its comprehensive coverage. The act offers an expressive permission for an adult to take on continuous participation in a study event of capacity losing to give consent. A number of doctrines for human rights, today, accord more value to the self-determination principles and respect for autonomy, and thus medical laws greatly reflect such principles. The inclusion of advanced decision in the Mental Capacity Act, suggests that every adult is respected and permitted to make own decisions provided that he or she has the full capacity to take that action. The concept of capacity is crucial to the law of consent as well as in courts in devising their criteria on which to establish the availability of capacity situations where the primary opinion is totally challenged. The assessment of the threats to adult vulnerability on the basis of inherent and situational accounts of the existing vulnerability is developed on both external and the objective identification of specific risks posed to a person’s decision-making autonomy. References Dunn, M.D, Isabel, C, & Holland, J.A., (2008).To empower or to protect? Constructing the ‘vulnerable adult’ in English law and public policy. UK. University of Cambridge. Hale, B., (2007). Justice and Equality in Mental health Law: The European Experience. International Journal of Law and Psychiatry, 30, 18–28. Helga K., (2000). Some Reflections on the Problem of Advance Directives, Personhood, and Personal Identity. Kennedy Institute of Ethics Journal , 9 (4), 347-364. Lord Chancellor’s Department Who Decides? (1997). Making decisions on behalf of ‘mentally incapacitated’ adults. London. The Stationery Office. Mackenzie, C & Stoljar, N. (eds.) (2000). Relational Autonomy: Feminist Perspectives on Autonomy, Agency and the Social Self. New York: Oxford University Press. Mental Capacity Act 2005, (2007). Code of Practice. London: The Stationary Office. Merakou, K & Tragakes, E., (1999). Developments of Patients’ Rights Legislation. European Journal of Health Law, 6(1), 71-81. Mental Capacity Act 2005, (2008). Deprivation of Liberty Safeguards: Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice. London. The Stationary Office. Shickle, D., (2006). The Mental Capacity Act 2005. Clin Med. 6(2), 169-73. Violeta, Be Irević, (2010). End-of-Life Care in the 21st Century: Advance Directives in Universal Rights Discourse. Bioethics 24 (3):105-112. Wilson, J. (2007). Is respect for autonomy defensible? Journal of Medical Ethics; 33, 353-356. Read More