scholarly journals Can procedural and substantive elements of decision-making be reconciled in assessments of mental capacity?

2013 ◽  
Vol 9 (1) ◽  
pp. 71-86 ◽  
Author(s):  
Natalie F. Banner
Keyword(s):  
Decision Making ◽  
Treatment Decision ◽  
Mental Capacity ◽  
Individual Autonomy ◽  
The Law ◽  
Strict Reading

AbstractCapacity legislation aims to protect individual autonomy and avoid undue paternalism as far as possible, partly through ensuring patients are not deemed to lack capacity because they make an unwise decision. To this end, the law employs a procedural test of capacity that excludes substantive judgments about patients' decisions. However, clinical intuitions about patients' capacity to make decisions about their treatment often conflict with a strict reading of the legal criteria for assessing capacity, particularly in psychiatry. In this article I argue that this tension arises because the procedural conception of capacity is inadequate and does not reflect the clinical or legal realities of assessing capacity. I propose that conceptualising capacity as having ‘recognisable reasons’ for a treatment decision provides a practical way of legitimately incorporating both procedural and substantive elements of decision-making into assessments of capacity.

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.

scholarly journals SEBUAH TELAAH ATAS REGULASI DAN PENETAPAN PENGAMPUAN BAGI PENYANDANG DISABILITAS DI INDONESIA DALAM PARADIGMA SUPPORTED DECISION MAKING

2021 ◽  
Vol 6 (02) ◽  
pp. 79-109
Author(s):  
PUSPANINGTYAS PANGLIPURJATI
Keyword(s):  
Decision Making ◽  
People With Disabilities ◽  
Secondary Data ◽  
Mental Capacity ◽  
Legal Action ◽  
Legal Capacity ◽  
Mental Disabilities ◽  
New Paradigm ◽  
Continuous State ◽  
The Law

Kitab Undang-Undang Hukum Perdata regulates that an adult, who is in a continuous state of simple-mindedness, insanity or rage, shall be placed under conservatorship, notwithstanding that he might have mental capacity from time to time (mental disabilities). Similiar to that, Undang-Undang Penyandang Disabilitas regulates that people with disabilities can be declared as incapable of the law and placed under conservatorship by court judgment. The consequence of that conservatorship is an individual placed in conservatorship has no legal capacity and prohibited to do any legal action by themself. The perspective that be used in that two regulations and some court judgments in giving conservatorship is substituted decision making which the conservator substitutes the position of an individual placed in conservatorship. This concept actually is no longer appropriate with the new paradigm brought by CRPD, supported decision making. This issue makes the researcher did a normative research by using some secondary data as regulations and also some conservatorship court judgment. Based on the research, the researcher found that the regulations and some conservatorship court judgment do not support the efforts to fulfill the rights of person with disabilities to got an equality before the law especially to make any decisions.  

Advance Directives Affecting Medical Treatment Choices

1997 ◽  
Vol 13 (2) ◽  
pp. 5-8 ◽  
Author(s):  
Charles Waddell ◽  
Roger M. Clarnette ◽  
Michael Smith ◽  
Lynn Oldham
Keyword(s):  
Decision Making ◽  
Advance Directives ◽  
Treatment Decision ◽  
Postal Survey ◽  
Individual Autonomy ◽  
Medical Practitioners ◽  
Treatment Choices ◽  
Treatment Decision Making ◽  
Hypothetical Patient ◽  
Life Threatening Illness

Advance directives theoretically enhance individual autonomy and facilitate treatment decision making at the end of life. There is little empirical evidence to support this, however. Based on a national postal survey of 2172 randomly selected medical practitioners (response rate 73%), this paper examines the effect advance medical directives have on (a) treatment prescribing for terminally ill people and (b) the degree of difficulty practitioners experience in making treatment choices. A hypothetical patient with Alzheimer's disease and an acute life-threatening illness was presented with and without an advance directive. With a directive, respondents were more uniform in their choice of treatment, with 86% choosing as the patient had requested. Difficulty with decision making was also less with the directive, 31% vs 45% with no directive. The data indicate that advance directives do affect practitioners’ treatment choices in favor of patient wishes and reduce the difficulty practitioners may experience in making them.

Mental capacity in the shadow of suicide: What can the law do?

2013 ◽  
Vol 9 (1) ◽  
pp. 87-105 ◽  
Author(s):  
Genevra Richardson
Keyword(s):  
Decision Making ◽  
Mental Disorder ◽  
Mental Capacity ◽  
Best Interests ◽  
Treatment Refusal ◽  
Persons With Disabilities ◽  
Life Threatening ◽  
The Law ◽  
Legal Concepts ◽  
Decision Making Model

AbstractIn a society where suicide is lawful how should we respond to a life-threatening treatment refusal by someone whose decision-making might be affected by a mental disorder? In considering this question this article examines the three established concepts currently employed by the law to analyse such cases: mental capacity, best interests and mental disorder. It then considers whether a supported decision-making model based on a notion of universal capacity, such as that espoused by the Convention on the Rights of Persons with Disabilities, might alleviate some of the dilemmas arising from the application of the traditional legal concepts.

Fluctuating capacity and impulsiveness in acquired brain injury: the dilemma of “unwise” decisions under the Mental Capacity Act

2016 ◽  
Vol 18 (4) ◽  
pp. 229-239 ◽  
Author(s):  
Chris Lennard
Keyword(s):  
Decision Making ◽  
Brain Injury ◽  
Real Life ◽  
Acquired Brain Injury ◽  
Mental Capacity ◽  
Individual Autonomy ◽  
Main Concern ◽  
Content Type ◽  
Code Of Practice ◽  
Mental Capacity Act

Purpose – The purpose of this paper is to examine the dilemma at the heart of nursing care – the striving for empowerment of people in nurses’ care with the responsibility to protect vulnerable adults from harm. In doing so, it argues that in difficult and borderline cases, capacity assessment is complex and ultimately based on a judgment involving interpretation, and welcomes the views of clinicians who have challenged the procedural test of capacity in the Mental Capacity Act (MCA). Design/methodology/approach – It presents an illustrative study of a person with acquired brain injury (ABI) resident in a nursing home, who had been assessed under the MCA and judged to have capacity regarding health and welfare decisions, who subsequently displayed a persistent and impulsive desire to leave the unit without thought of risk and vulnerability to herself, prompting safeguarding concerns, and a reassessment of her capacity. Findings – The paper asserts that supporting people with ABI during capacity assessments, as the MCA decrees, in a very structured way can create a false sense of “capacity”. It maintains that executive impairments in ABI, being difficult to assess in formal settings, are best undertaken over time, in real-life settings, with evidence from third parties. It welcomes the MCA’s desire to protect individual autonomy and avoid undue paternalism, through ensuring people are not deemed to lack capacity simply because they make an unwise decision. Originality/value – But it goes on to argue that in ABI it is often the fact of unwise decision making that is the prominent factor and main concern, particularly in regard to impulsive decision making. If nurses have to make a judgment as to how unwise decisions made with decision-making capacity are to be distinguished from unwise decisions made without it in people with ABI, then, the author concludes, a major area of difficulty for nurses is ascertaining when the presumption of capacity should be challenged, an area that an updated code of practice needs to clarify.

scholarly journals From dispassionate law to compassionate outcomes in health-care law, or not

2017 ◽  
Vol 13 (2) ◽  
pp. 172-183 ◽  
Author(s):  
Hazel Biggs
Keyword(s):  
Health Care ◽  
Decision Making ◽  
End Of Life ◽  
Best Interests ◽  
Individual Autonomy ◽  
Complex Nature ◽  
Relief Of Suffering ◽  
The Law ◽  
End Of Life Decision ◽  
Health Care Law

AbstractHealth-care law presents numerous challenges to the conception of the law as a dispassionate arbiter of disputes or protector of rights. Issues relating to end-of-life care, the assessment of mental capacity and decision-making for those who lack capacity, amongst others, epitomise the complex nature of health-care law. They also raise globally applicable questions about discrimination, or equal protection, as well as concerns for relief of suffering, the assessment of best interests and the exercise of individual autonomy. This paper will evaluate the extent to which law's traditional objectivity (dispassion) is undermined by the introduction of concerns about compassion into judicial and executive decisions. Focusing primarily on the law in England and Wales, but with reference to multi-jurisdictional case-law and international instruments, it will consider whether the law provides compassionate approaches and outcomes in end-of-life decision-making, and the implications of compassion for legal certainty.

scholarly journals Treatment decision-making capacity in non-consensual psychiatric treatment: a multicentre study

2017 ◽  
Vol 27 (5) ◽  
pp. 492-499 ◽  
Author(s):  
G. Mandarelli ◽  
F. Carabellese ◽  
G. Parmigiani ◽  
F. Bernardini ◽  
L. Pauselli ◽  
...  
Keyword(s):  
Decision Making ◽  
Cognitive Functioning ◽  
Rating Scale ◽  
Psychiatric Treatment ◽  
Treatment Decision ◽  
Mental Capacity ◽  
Treatment Decision Making ◽  
Decision Making Capacity ◽  
Hospitalised Patients ◽  
High Treatment

Aims.To evaluate treatment decision-making capacity (DMC) to consent to psychiatric treatment in involuntarily committed patients and to further investigate possible associations with clinical and socio-demographic characteristics of patients.Methods.131 involuntarily hospitalised patients were recruited in three university hospitals. Mental capacity to consent to treatment was measured with the MacArthur Competence Assessment Tool for Treatment (MacCAT-T); psychiatric symptoms severity (Brief Psychiatric Rating Scale, BPRS-E) and cognitive functioning (Mini Mental State Examination, MMSE) were also assessed.Results.Mental capacity ratings for the 131 involuntarily hospitalised patients showed that patients affected by bipolar disorders (BD) scored generally better than those affected by schizophrenia spectrum disorders (SSD) in MacCAT-T appreciation (p< 0.05) and reasoning (p< 0.01). Positive symptoms were associated with poorer capacity to appreciate (r= −0.24;p< 0.01) and reason (r= −0.27;p< 0.01) about one's own treatment. Negative symptoms were associated with poorer understanding of treatment (r= −0.23;p< 0.01). Poorer cognitive functioning, as measured by MMSE, negatively affected MacCAT-T understanding in patients affected by SSD, but not in those affected by BD (SSDr= 0.37;p< 0.01; BDr= −0.01;p= 0.9). Poorer MacCAT-T reasoning was associated with more manic symptoms in the BD group of patients but not in the SSD group (BDr= −0.32;p< 0.05; SSDr= 0.03;p= 0.8). Twenty-two per cent (n= 29) of the 131 recruited patients showed high treatment DMC as defined by having scored higher than 75% ofunderstanding, appreciating and reasoningMacCAT-T subscales maximum sores and 2 atexpressing a choice. The remaining involuntarily hospitalised patients where considered to have low treatment DMC. Chi-squared disclosed that 32% of BD patients had high treatment DMC compared with 9% of SSD patients (p< 0.001).Conclusions.Treatment DMC can be routinely assessed in non-consensual psychiatric settings by the MacCAT-T, as is the case of other clinical variables. Such approach can lead to the identification of patients with high treatment DMC, thus drawing attention to possible dichotomy between legal and clinical status.

scholarly journals Diminished capacities to make treatment decision for COVID-19 vaccination in schizophrenia

2022 ◽  
Author(s):  
Stephane Raffard ◽  
Sophie Bayard ◽  
Margot Eisenblaetter ◽  
Philippe Tattard ◽  
Jerome Attal ◽  
...  
Keyword(s):  
Decision Making ◽  
High Risk ◽  
Assessment Tool ◽  
Treatment Decision ◽  
Poor Performance ◽  
Mental Capacity ◽  
Psychotic Symptoms ◽  
Competence Assessment ◽  
Make Treatment Decision ◽  
Vaccination Rates

Abstract Recent evidence suggests that schizophrenia patients are at high risk for severe COVID-19 and should be prioritized for vaccination. However, impaired decision-making capacities could negatively affect the uptake of COVID-19 vaccination in this population. Competence to consent to COVID-19 vaccination was assessed in 80 outpatients with schizophrenia. Using the MacArthur Competence Assessment Tool for Treatment, 56.3% of the sample were classified as having diminished mental capacity. Poor performance was associated with lower vaccination rates, poorer cognition and higher level of psychotic symptoms. Developing interventions for enhancing informed consent for vaccination is urgent within this population.

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