Unable to make decisions is addressed in section 3; ‘ a person is in able to make a decision for himself if he is unable, to understand the information relevant to the decision, to retain the information, to use or weigh up that information as part of the process of making the decision, or to continue the decision.’ (pg 514)
The Act is underpinned by a set of five key principles. The fist one is a presumption of capacity. Every adult has the right to make decisions unless it can be proved there is no capacity. Second, the rights for individuals to be supported to make own decisions, people must be given the appropriate help before anyone concludes that they cannot make their own decisions. Support is an effective way for people to communicate their wishes and feelings, this show that individuals are encouraged in decision making and participation in anything involving them. People who may be considered to lack capacity may just need extra support and someone to explain things in an easier context which allows them to make decisions about their lives. Thirdly, the individuals must retain the right to make what might be seen as eccentric or unwise decision. This shows that if a person is lacking capacity they are being listened to and what they say is being taken into account and is enabling individuals without capacity to make decisions about themselves. Fourth anyone making decisions on behalf the incapacitated person must do so in the best interest. And fifth anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms. ()
Difficulties arise when making decisions for people who do not have capacity. The law recognises mechanisms for substitute decision making. This includes best interests, lasting power of attorney and the new court of protections ‘deputies’, and advance decisions.
The fundamental principle of making a decision for the person who is considered to lack capacity must be must be taken in their best interest. This is a statutory codification of the existing common law position, and gives the Act its moral compass. When making a decision different factors must be taken into account including what the person would have wanted. The person giving care or treatment must consider ‘ the ascertainable past and present wishes and feelings of the person concerned, the beliefs and values that would be likely to influence his decisions if he had capacity (including religious beliefs and cultural values), other factors that would be likely to consider if able to do so (including a sense of family obligations), the vies of others it is considered appropriate to consult including anyone so named, carers and others interested in the person’s welfare and any doneness of an Lasting Power of Attorney or deputies appointed under the act,’ (Brammer.A 2007, pg 514). This objective is a test of the possible of what would be in the person’s best interest and apply it.). Decision makers must also take in to account the possibility of the likelihood of the person regaining capacity. If it is possible that decisions can be left until person regains capacity then it should. However in practice the issue of ‘best interest’ and decision making is really difficult as the decision maker should not let what they believe will be for the best interest instead of what really that person may have wanted.
The Lasting Power of Attorney (LAP) section 9-14, replaces the 1989 enduring power of attorney to make decisions on property and financial affairs, it has now been extended to health and welfare decisions. An individual who has capacity can nominate a person to make decisions on their behalf if they lose the capacity to make decisions about themselves. The decision making can include health, welfare, property and money. ‘The individual creating the LPA can also set a variety of conditions on the exercise of the powers. Anyone acting under the powers of an LPA is constrained by the basic principles of the Act and has to make decisions in the best interests of the incapacitated person.’ () . the LPA can refuse any treatment if it is life-sustaining. However if health professional have concerns relating to decisions relating to serious medical treatment they can b referred for adjudication to the court of protection.
If a person has not appointed a LPA courts may appoint a ‘deputy’ to take care of financial matters as well as welfare decisions. Deputies will replace the current system of court of protection receivers. The court will decide whether proposed is suitable and will be supervised by the Public Guardian. They can assist in health care decision however deputies cannot make decisions about life sustaining treatment or over ride a decision.
Living will allows the person to make advance statements about refusing treatment. The current law gives some recognition to it. The Mental Capacity Act 05 introduces this as Advance decisions. A refusal of treatment is binding if the person is 18years or over, and had the capacity. It must clearly specify the treatment they wish to refuse and the particular circumstances in which the refusal is to apply, the person making the decision did not withdraw the decision at the time they had the capacity to do so, the person did not appoint a power of attorney after the directive was made, (). This should be made in writing a signed by that person unless it doesn’t relate to any life sustaining treatment. This enables individuals to make decisions about themselves if in future they may lack capacity. As medicine advances it is important to let the practitioner know and keep the advance decision under review while decisions can still be made. This is helps practitioner to still make decisions while they have capacity. As part of the code of practice individuals must understand the information provided to them and the consequences of that decision. This will lose its validity if the person does not understand this.’ In an emergency or where there is doubt about the existence or validity of an advance directive, doctors can provide treatment that is immediately necessary to stabilize or to prevent a deterioration in the patient until the existence or applicability of the advance directive can be established.’ ()
The act also provides Independent Mental Capacity Advocate (IMCA). They support the person who lacks capacity and provide advice and guidance including attorney or deputy. They also represent the wishes, feelings, beliefs and values and the factors which are relevant to the decision. This gives the person lacking capacity to express their feelings and take part in decision making. IMCA is another way to communicate effectively with the person concerning. The person concerned must be included as much as possible in the decision making process (Jones.R.M, 2005, pg13
A new court of protection will have a jurisdiction relating to the whole act. This will be the final arbitrator for the matters of capacity. ‘the court will have jurisdiction to determine disputes relating to capacity, by making declarations and single orders, including whether an individual has or lacks capacity to make a particular decision’, (Brammer.A, 2007, pg517). The court also protects any decisions that are made which they believe are not in the best interest. They have the power to revoke an LPA if they feel that they are not acting in the best interest or neglecting the person and may result in a criminal offence. The court has the power to make a will and any declarations regarding issues such as finance and residence,. However this may not be what that person may have wanted so are the courts really acting in the best interests.
In conclusion The Mental Capacity Act 2005 will come into affect in April 2007. This legislation enables individuals who are considered to lack capacity to make decisions about their lives to some extent. A legal safeguards is provided for those vulnerable people who are deprived of their liberty, this gives them rights of appeal. The five principles introduced allow individuals to participate in decision making by assuming that they have capacity to make decisions unless proved otherwise. By providing support which facilitates and allows individuals to voice their opinion and make decisions.
The Act provides substitute decision making. The matter of ‘best interest’ is very complex, decisions being made have to be in the interest of the incapacitated person however it may not really be what that person really wanted and is more in the interest of the person making that decision. The law recognises that it is very important that the person in question is part of the decision making process as much as possible.
The person who may lose capacity in the law gives them a choice to appoint someone on their behalf to make decisions for them in a form of a LPA which has now been extended to welfare matters. The person with capacity is given the opportunity to make decisions about themselves and pass this decision making power over once they lack capacity.
They are also given the right to make any living will. What ever is written in the will is bound by for example refusing treatment. The law recognises the will as legal document and respects the decision makers’ decision.
Even though the law has tried to include the person who lacks capacity to make decisions about their lives there are still questions about substitute decision making is this really what the person would have wanted. The strength of this act is that living wills are binding to an extent and allows the person’s wishes to be carried out. The court also tries to make the best possible decisions by appointing a deputy however decisions made and whose interest is still debatable.
http://www.bma.org.uk/ap.nsf/Content/mencapact05?OpenDocument&Highlight=2,mental,capacity
(Jones.R.M, Mental capacity Act manual, sweet & Maxwell, 2005
British Medical Association, (2007), Withholding and withdrawing life prolonging medical treatment: guidance for decision making, (third edition) Britain, Blackwell Publishing
The stationary office, (2005) Explanatory Notes: Mental Capacity Act 2005, London, TSO publisher
Department of Health, Bournewood Briefing Sheet – June2006