scholarly journals The changing face of Capacity legislation in Ireland: algorithms for clinicians

2020 ◽  
pp. 1-5
Author(s):  
Valerie E Murphy ◽  
Gautam Gulati ◽  
Darius Whelan ◽  
Colum P Dunne ◽  
Brendan D Kelly
Keyword(s):  
Decision Making ◽  
Decision Making Capacity ◽  
The Law ◽  
Practical Implications

Capacity legislation in Ireland is evolving. The Assisted Decision-Making (Capacity) Act 2015 has been passed into law, but its main provisions are yet to be commenced. This paper compares the law and its practical implications currently and under the new legislation. Quick reference algorithms for frontline clinicians are proposed.

scholarly journals Transitions in decision-making authority at the end of life: a problem of law, ethics and practice in deceased donation

2020 ◽  
pp. medethics-2020-106572
Author(s):  
Shih-Ning Then ◽  
Dominique E Martin
Keyword(s):  
Decision Making ◽  
Organ Donation ◽  
End Of Life ◽  
Decision Maker ◽  
Legal Authority ◽  
Time Of Death ◽  
Medical Decisions ◽  
Ethical Concerns ◽  
Decision Making Capacity ◽  
Practical Implications

Where a person is unable to make medical decisions for themselves, law and practice allows others to make decisions on their behalf. This is common at the end of a person’s life where decision-making capacity is often lost. A further, and separate, decision that is often considered at the time of death (and often preceding death) is whether the person wanted to act as an organ or tissue donor. However, in some jurisdictions, the lawful decision-maker for the donation decision (the ‘donation decision-maker’) is different from the person who was granted decision-making authority for medical decisions during the person’s life. To date, little attention has been given in the literature to the ethical concerns and practical problems that arise where this shift in legal authority occurs. Such a change in decision-making authority is particularly problematic where premortem measures are suggested to maximise the chances of a successful organ donation. This paper examines this shift in decision-making authority and discusses the legal, ethical and practical implications of such frameworks.

Is childhood a disability? Using Mental Capacity Tribunals and the Deprivation of Liberty Safeguards to shield children's capacity to consent to and refuse medical treatment

2014 ◽  
Vol 19 (2) ◽  
pp. 96-106 ◽  
Author(s):  
Robin Mackenzie ◽  
John Watts
Keyword(s):  
Mental Health ◽  
Decision Making ◽  
Medical Treatment ◽  
Mental Health Treatment ◽  
Mental Capacity ◽  
Best Interests ◽  
Legal Analysis ◽  
Content Type ◽  
Decision Making Capacity ◽  
The Law

Purpose – The purpose of this paper is to demonstrate that the common and statutory law governing children's capacity or competence to consent to and to refuse medical treatment is unsatisfactory and to suggest solutions. Design/methodology/approach – Critical legal analysis of the law on assessing minors’ decision-making capacity in relation to legal recognition of their consent to and refusal of medical treatment. Findings – Without legal mechanisms which protect both children and their rights, all children and young people are effectively disabled from exercising age and capacity-related autonomy and participation in decisions affecting their lives. Yet in English law, inconsistencies between legal and clinical measures of decision-making capacity, situations where compulsory medical or mental health treatment is lawful, and tensions between rights and duties associated with human rights, autonomy, best interests and protections for the vulnerable create difficulties for clinicians, lawyers and patients. Research limitations/implications – As the paper acknowledges in its recommendations, the views of stakeholders are needed to enrich and inform legal reforms in this area. Originality/value – The paper makes suggestions to amend the law and clinical practice which are original and far reaching. The paper suggests that in order to observe children's rights while protecting them appropriately, the Mental Capacity Act 2005 and Deprivations of Liberty Safeguards should be applied to minors. The paper recommends the establishment of Mental Capacity Tribunals, similar in nature and purpose to Mental Health Tribunals, to provide legal safeguards and mechanisms to foster the supported decision-making envisaged in recent United Nations Conventions.

Assessing capacity in cases of fluctuating decision-making ability

2020 ◽  
Vol 29 (15) ◽  
pp. 908-909
Author(s):  
Richard Griffith
Keyword(s):  
Decision Making ◽  
Health Law ◽  
Senior Lecturer ◽  
Decision Making Capacity ◽  
The Law

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers the law on decision-making capacity and recent approaches to the assessment of fluctuating capacity by the Court of Protection

scholarly journals Rational Autonomy and Decision-Making Capacity

2020 ◽  
pp. 183-210
Author(s):  
Jonathan Pugh
Keyword(s):  
Decision Making ◽  
Decision Making Capacity ◽  
Clinical Literature ◽  
Sliding Scale ◽  
The Law ◽  
Rational Decisions

Rationalist accounts of autonomy are often criticized on the basis of anti-paternalist concerns: If only rational decisions can be autonomous, one might worry that eccentric decisions may not be respected, and that more people would be found to lack decision-making capacity. The main aim of this chapter is to show how a rationalist approach can respond to the various ways in which such anti-paternalist concerns can be raised. The author first outlines some prominent accounts of decision-making capacity in the law and clinical literature, and claims that the widely adopted sliding-scale view of capacity need not fall foul of anti-paternalistic concerns. He then defends a rationalist approach to understanding decision-making capacity in ideal contexts from anti-paternalist concerns. The author concludes by responding to an epistemic version of the anti-paternalist objection in non-ideal contexts, according to which incorporating considerations of rationality into assessments of decision-making capacity would make costly errors in this assessment more likely.

Conclusion

2018 ◽  
Author(s):  
Ronnie Mackay ◽  
Warren Brookbanks
Keyword(s):  
Decision Making ◽  
Fitness To Stand Trial ◽  
Decision Making Capacity ◽  
The Law ◽  
Decisional Competence

This concluding chapter offers a synthesis of the law around fitness to stand trial drawn from the different jurisdictions surveyed in the book. While individual jurisdictions have crafted their own solutions to questions of definition, procedure, and disposition, a range of specific issues have come to the fore requiring further analysis and resolution. These include the permissibility or otherwise of compulsorily medicating incapacitated defendants to restore competence, the desirability of disaggregating the unitary test for fitness, the movement from cognition to decision-making capacity as the focus of unfitness, the utility of the decisional competence construct, and the parameters of effective participation. While no single jurisdiction offers an entirely satisfactory way of dealing with the unfit to plead, what the differing approaches show is how important it is to endeavour to find approaches to the problems in the law and procedure in this complex area.

scholarly journals Inconsistencies in legal and scientific perspectives on adolescents' capacities

2011 ◽  
Vol 17 (1) ◽  
pp. 12-14 ◽  
Author(s):  
Thomas Grisso
Keyword(s):  
Decision Making ◽  
Decision Making Capacity ◽  
The Us ◽  
The Law ◽  
Two Bodies

SummaryThe US Supreme Court's complaint in 2005 about inconsistencies in research into adolescents' decision-making capacity did not take into account the different demands placed on adolescents by controlled situations and unstructured situations. Apparent inconsistencies in research into adolescents' capacity in treatment situations and in trial situations may simply be due to methodological differences between the two bodies of research. Apparent inconsistencies in the law regarding presumptions about adolescents' capacity are related to differences in societal objectives across decision-making contexts.

Issues of Capacity and Decision-Making in the Context of Delirium

2015 ◽  
Vol 24 (4) ◽  
pp. 140-145
Author(s):  
Kevin R. Patterson
Keyword(s):  
Decision Making ◽  
Patient Autonomy ◽  
Care Setting ◽  
Cognitive Change ◽  
Treatment Team ◽  
Precipitating Factors ◽  
Term Care ◽  
Decision Making Capacity ◽  
Fundamental Consideration

Decision-making capacity is a fundamental consideration in working with patients in a clinical setting. One of the most common conditions affecting decision-making capacity in patients in the inpatient or long-term care setting is a form of acute, transient cognitive change known as delirium. A thorough understanding of delirium — how it can present, its predisposing and precipitating factors, and how it can be managed — will improve a speech-language pathologist's (SLPs) ability to make treatment recommendations, and to advise the treatment team on issues related to communication and patient autonomy.

Parliamentarism and the Legislative Branch

2017 ◽  
Author(s):  
András Sajó ◽  
Renáta Uitz
Keyword(s):  
Decision Making ◽  
Political Parties ◽  
Legislative Branch ◽  
Effective Decision ◽  
The Law ◽  
Internal Operations ◽  
Effective Decision Making ◽  
The Relationship ◽  
Law Making

This chapter examines the relationship between parliamentarism and the legislative branch. It explores the evolution of the legislative branch, leading to disillusionment with the rationalized law-making factory, a venture run by political parties beyond the reach of constitutional rules. The rise of democratically bred party rule is positioned between the forces favouring free debate versus effective decision-making in the legislature. The chapter analyses the institutional make-up and internal operations of the legislature, the role of the opposition in the legislative assembly, and explores the benefits of bicameralism for boosting the powers of the legislative branch. Finally, it looks at the law-making process and its outsourcing via delegating legislative powers to the executive.

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