scholarly journals A civic republican analysis of mental capacity law

Legal Studies ◽  
2018 ◽  
Vol 38 (1) ◽  
pp. 147-163
Author(s):  
Tom O'Shea
Keyword(s):  
Decision Making ◽  
Functional Assessment ◽  
Legal Regulation ◽  
Mental Capacity ◽  
Care Planning ◽  
Advanced Care Planning ◽  
Decisional Capacity ◽  
Arbitrary Power ◽  
Decision Making Capacity ◽  
Psychological Disability

AbstractThis paper draws upon the civic republican tradition to offer new conceptual resources for the normative assessment of mental capacity law. The republican conception of liberty as non-domination is used to identify ways in which such laws generate arbitrary power that can underpin relationships of servility and insecurity. It also shows how non-domination provides a basis for critiquing legal tests of decision making that rely upon ‘diagnostic’ rather than ‘functional’ criteria. In response, two main civic republican strategies are recommended for securing freedom in the context of the legal regulation of psychological disability: self-authorisation techniques and participatory shaping of power. The result is a series of proposals for the reform of decisional capacity law, including a transition towards purely functional assessment of decisional capacity, surer legal footing for advanced care planning, and greater control over the design and administration of decision making capacity laws by those with psychological disabilities.

Ethical and moral dilemmas including do not attempt resuscitation orders, advanced care planning, and end-of-life care

2020 ◽  
pp. 283-296
Author(s):  
Rowan H. Harwood
Keyword(s):  
Decision Making ◽  
End Of Life ◽  
End Of Life Care ◽  
Moral Dilemmas ◽  
Mental Capacity ◽  
Care Planning ◽  
Advanced Care Planning ◽  
Life Care ◽  
Resuscitation Orders ◽  
Course Of Action

‘Ethical and moral dilemmas including do not attempt resuscitation orders, advanced care planning, and end-of-life care’ examines the difficulties of decision-making in stroke medicine, the definitions of ‘ethics’, laws’, ‘profession’, and ‘culture’; ethical systems (consequentialism, rights and duties, virtues, communication and relationships; practical ethics), principlism (autonomy, beneficence, non-maleficence, and justice), communication, and relationship-based ethics; consent, mental capacity, best interests, quantified decision-making, cardiopulmonary resuscitation, difficulties in feeding decisions, end-of-life care; proxy and substitute decision-making, advance care planning, and shared decision-making. Stroke care raises situations where the best course of action is not clear. Ethical theory helps to understand these dilemmas, but applying them in practice needs knowledge (about stroke and about people), time, skills in communication, teamwork, and managing situations, compassion and sensitivity, and broad-mindedness. This only comes from experience, professionalism, and the support of teams and colleagues. Practitioners must be adept at thinking about benefits, burdens, autonomy, mental capacity, developing communication skills, and building trusting relationships, should respect fundamental rights, and show virtues of honesty, compassion, and courage.

The capacity to designate a surrogate is distinct from decisional capacity: normative and empirical considerations

2021 ◽  
pp. medethics-2020-107078
Author(s):  
Mark Navin ◽  
Jason Adam Wasserman ◽  
Devan Stahl ◽  
Tom Tomlinson
Keyword(s):  
Decision Making ◽  
Mental Illness ◽  
Medical Decision Making ◽  
Medical Decision ◽  
Decisional Capacity ◽  
Risks And Benefits ◽  
Relative Risks ◽  
Decision Making Capacity ◽  
Cognitive Diseases ◽  
Surrogate Selection

The capacity to designate a surrogate (CDS) is not simply another kind of medical decision-making capacity (DMC). A patient with DMC can express a preference, understand information relevant to that choice, appreciate the significance of that information for their clinical condition, and reason about their choice in light of their goals and values. In contrast, a patient can possess the CDS even if they cannot appreciate their condition or reason about the relative risks and benefits of their options. Patients who lack DMC for many or most kinds of medical choices may nonetheless possess the CDS, particularly since the complex means-ends reasoning required by DMC is one of the first capacities to be lost in progressive cognitive diseases (eg, Alzheimer’s disease). That is, patients with significant cognitive decline or mental illness may still understand what a surrogate does, express a preference about a potential surrogate, and be able to provide some kind of justification for that selection. Moreover, there are many legitimate and relevant rationales for surrogate selection that are inconsistent with the reasoning criterion of DMC. Unfortunately, many patients are prevented from designating a surrogate if they are judged to lack DMC. When such patients possess the CDS, this practice is ethically wrong, legally dubious and imposes avoidable burdens on healthcare institutions.

Clinical Issues

2021 ◽  
pp. 151-175
Author(s):  
Timothy E. Quill ◽  
Judith K. Schwarz
Keyword(s):  
Decision Making ◽  
Advance Directives ◽  
Oral Intake ◽  
Decisional Capacity ◽  
Clinical Issues ◽  
Decision Making Capacity ◽  
Seriously Ill

All seriously ill persons should complete advance directives specifying indications for limiting future provision of food and fluids. AD’s for SED specify When oral intake is to be limited and What limitations are to be imposed. Two categories include: (1) withholding all assisted oral intake from a person who has lost decision-making capacity, and previously indicated her wish to not receive any assisted feeding, and (2) Comfort Feeding Only (CFO) which involves providing as much or as little food and fluid as the patient seems to desire. CFO has three subcategories: (a) “Self-feeding only”—limiting oral intake to what the patient is able to self-administer. (b) Both “self-feeding” and “caregiver assisted-feeding” in whatever amount the patient enjoys. (c) “Minimum Comfort Feeding Only” is a modification for those who had expressed a desire to SED but lost decisional capacity before implementation, but now seem to desire food or fluid.

scholarly journals Medical Decision-Making in Oncology for Patients Lacking Capacity

2020 ◽  
pp. e186-e196
Author(s):  
Jonathan M. Marron ◽  
Kaitlin Kyi ◽  
Paul S. Appelbaum ◽  
Allison Magnuson
Keyword(s):  
Decision Making ◽  
Developmentally Disabled ◽  
Medical Decision ◽  
Decisional Capacity ◽  
Medical Decisions ◽  
Diminished Capacity ◽  
Decision Making Capacity ◽  
Minor Children ◽  
Oncology Practice ◽  
Do So

Modern oncology practice is built upon the idea that a patient with cancer has the legal and ethical right to make decisions about their medical care. There are situations in which patients might no longer be fully able to make decisions on their own behalf, however, and some patients never were able to do so. In such cases, it is critical to be aware of how to determine if a patient has the ability to make medical decisions and what should be done if they do not. In this article, we examine the concept of decision-making capacity in oncology and explore situations in which patients may have altered/diminished capacity (e.g., depression, cognitive impairment, delirium, brain tumor, brain metastases, etc.) or never had decisional capacity (e.g., minor children or developmentally disabled adults). We describe fundamental principles to consider when caring for a patient with cancer who lacks decisional capacity. We then introduce strategies for capacity assessment and discuss how clinicians might navigate scenarios in which their patients could lack capacity to make decisions about their cancer care. Finally, we explore ways in which pediatric and medical oncology can learn from one another with regard to these challenging situations.

scholarly journals Evaluating the efficacy of an Advanced Care Planning Program for Health Decisions in patients with advanced heart failure: protocol for a Randomized Clinical Trial

2020 ◽  
Vol 20 (1) ◽  
Author(s):  
Beatriz Sánchez ◽  
Carlos Guijarro ◽  
María Velasco ◽  
María Jesús Vicente ◽  
Miguel Galán ◽  
...  
Keyword(s):  
Heart Failure ◽  
Clinical Trial ◽  
Decision Making ◽  
Advanced Heart Failure ◽  
Care Planning ◽  
Advanced Care Planning ◽  
Health Decisions ◽  
The Impact

Abstract Background An Advanced Care Planning (ACP) program of health decisions is the result of a process of reflection and relationship-building between the patient, their relatives and health professionals. It is based on respect for patients’ autonomy, involving them in making decisions about their disease in a way that is shared between the medical team, the patient and their relatives. Up until now, the efficacy of an ACP has not been measured in the existing literature, and therefore it is unknown if these programs reach their goal. The main objective of our study is to evaluate the efficacy of an ACP program for decision-making in patients with advanced heart failure (HF) in comparison to usual follow up and care. This objective will be evaluated by the Patient Activation Measure test, which measures the participation and self-management of the patient in decision-making. Secondary objectives: to evaluate the effect of the program on quality of life, to know if the patients wishes expressed through the ACP program are fulfilled, to measure the impact of the program on patients’ caregivers, to determine the satisfaction of patients included in the program and to evaluate the effect on quality of death. Methods Randomized multicentre clinical trial at four hospitals in Madrid. Once they are included in the study, patients’ allocation to groups (control vs intervention) will be made by alternative sampling. ACP will be applied to the intervention group, whereas in the Control Group usual follow-up will be carried out in HF units. All patients will fulfil questionnaires and tests related to the objectives of the study again after a 12-month follow-up period in order to gauge the effect of ACP in patients with advanced HF. Discussion The characteristics of patients with advanced HF make them a model for designing ACP programs, given the high prevalence of this disease, the progressive increase in its incidence and it’s clinical characteristics. Until now, the efficacy of this type of program has not been measured, so this Clinical Trial can provide relevant data for future ACP projects. Trial registration ClinicalTrials.gov Identifier: NCT04424680. Registered 9 June 2020. Retrospectively registered, https://clinicaltrials.gov/ct2/show/NCT04424680?term=NCT04424680&draw=2&rank=1.

Advance Care Planning for Persons with Intellectual Disabilities

GeroPsych ◽  
2018 ◽  
Vol 31 (2) ◽  
pp. 87-95 ◽  
Author(s):  
Monika T. Wicki
Keyword(s):  
Decision Making ◽  
Intellectual Disabilities ◽  
End Of Life ◽  
Advance Care Planning ◽  
Care Planning ◽  
End Of Life Decisions ◽  
Percent Agreement ◽  
Decision Making Capacity ◽  
Advance Care ◽  
Life Decisions

Abstract. As people live longer, they become more likely to die from prolonged, incurable, chronic illnesses occurring more frequently in old age. This study explores the usefulness, quality, and reliability of documented advance care planning interviews to determine the decision-making capacity of persons with intellectual disabilities (IDs). A volunteer sample of 60 persons rated the capacity to consent to treatment of four persons deciding on two end-of-life decisions. Sensitivity, specificity, and percent agreement were calculated. Interrater reliability was assessed using Fleiss’ κ and Krippendorff’s α. A Yates’ corrected χ2 was used to analyze differences in ratings between groups of raters. The sensitivity value was 62%; the specificity value was 95%. The percent agreement for all participants was 70%, Fleiss’ κ was 0.396, and Krippendorff’s α was 0.395. Of the participants, 72 found documented advance care planning discussions useful for diagnosing the decision-making capacity of people with IDs. The documented interviews helped to identify those persons with IDs who had the decision-making capacity. Documented interviews on end-of-life decisions could make a valuable contribution to fostering their self-determination in end-of-life issues.

Assessment of Decision-Making Capacity

2020 ◽  
pp. 19-24
Author(s):  
Kenneth V. Iserson
Keyword(s):  
Decision Making ◽  
Medical Care ◽  
System Capacity ◽  
Decisional Capacity ◽  
Value System ◽  
Decision Making Capacity ◽  
Legal Term

Decision-making capacity (rather than “competence,” a legal term) is the ability to make decisions about one’s own medical care. Having decision-making capacity rests on the patient’s understanding their healthcare options and choosing an option consistent with their stable value system. Capacity is decision relative, meaning that the criteria to have decisional capacity depend on the complexity of the decision and the seriousness of possible outcomes. Individuals can have fluctuating decision-making capacity.

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