Chapter

The Mental Capacity Act and conceptions of the good

Elizabeth Fistein

in Autonomy and Mental Disorder

Published on behalf of Oxford University Press

Published in print April 2012 | ISBN: 9780199595426
Published online February 2013 | e-ISBN: 9780191754739 | DOI: http://dx.doi.org/10.1093/med/9780199595426.003.0032

Series: International Perspectives in Philosophy & Psychiatry

The Mental Capacity Act and conceptions of the good

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Respect for personal autonomy is widely accepted as an important ethical principle in medical practice. Generally, the principle is enacted by seeking informed consent for acts connected with medical care and treatment, and by respecting refusals of the care and treatment on offer. However, a problem arises when a patient is thought to lack the mental capacities necessary for participation in the consent process. Paternalism has been defined as ‘the interference of a state or an individual with another person, against their will, and defended or motivated by a claim that the person interfered with will be better off or protected from harm’ (Dworkin 2009). Whilst ‘soft’ paternalism, or interference with actions that are not the products of an autonomous will, is often considered justifiable, ‘hard’ paternalism, interference with autonomous individuals, has fewer defenders (McMillan 2007).

In some circumstances (e.g. unconsciousness, infancy) the lack of capacity is uncontroversial, as is the imperative to intervene in treatable cases rather than letting the patient die simply for wont of consent. Such cases are generally considered to be examples of justified paternalism. However, in medicine circumstances are rarely as clear-cut as these. Different forms of mental disorder may, to a greater or lesser extent, interfere with a person’s ability to participate in informed decision-making (Okai et al. 2007) and it may, in practice, be difficult to determine whether choices are sufficiently autonomous to demand respect. Moreover, even if decision-making ability is impaired to the extent that a person is deemed unable to give legally valid consent, he may remain capable of expressing preferences. In addition to the expression of preferences, patients with progressive or relapsing and remitting conditions may in the past have expressed deeply held values that are pertinent to the decision to be made on their behalf in the present. To what extent should practitioners take such preferences and values into account when providing care or treatment for people who are currently unable to give legally valid consent?

In England and Wales, the Mental Capacity Act 2005 (MCA), has been developed to regulate this difficult area of practice. The Act defines the circumstances under which a person’s decision will be deemed insufficiently autonomous to carry legal weight. If someone is found to lack the legal capacity to make a particular decision, that decision will be made on his behalf. The Act also provides guidance on the factors to be considered when making a decision on behalf of somebody else. However, despite the implementation of this comprehensive regulatory framework, it can be difficult to decide how to treat a person who has a degree of cognitive impairment but nonetheless retains strong views about care and treatment which appear to stem from longstanding values.

In this chapter, I reflect upon this difficulty from the perspective of a psychiatrist considering the real case of a woman with dementia who does not want to be placed in a residential care home. Drawing on the idea of reflective equilibrium as a method for resolving ethical problems (Rawls 1971; Beauchamp and Childress 2001), theoretical accounts of the boundaries of personal autonomy and justifications for paternalism are considered alongside the discussion of the clinical case which took place at a multi-disciplinary team meeting. The moral intuitions apparent in the deliberations of the clinicians are explicated and used to reconsider theory, while theory is used to inform a critique of practice.

Chapter.  8247 words. 

Subjects: Psychiatry

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