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Who Should Make Medical Decisions for Those Without Capacity?

Paper Type: Free Essay Subject: Medical
Wordcount: 2310 words Published: 23rd Sep 2019

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Ethically, how ought medical decisions to be made for those adults who lack the legal capacity to decide? Discuss with reference to the law and the concepts of vulnerability and respect in healthcare.


The right to choose what happens to our bodies is directly vital to our wellbeing. This right is often represented as a doctor’s moral obligation to show respect for patient’s autonomy and is often considered to be the moral centre of ethical medical practice (O’Neill 1984). This right is only meaningful if the person is correctly informed, is able to make decisions without coercion as well as having the capability or capacity to make the decision.

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Difficult ethical dilemmas arise when someone becomes incapable of making self-governing decisions, in this case, their decision-making rights are overlooked and the concern for their welfare becomes a priority (Ganzini et al. 2005). To someone does not have capacity is a serious commitment as you are essentially taking away fundamental human freedoms, leaving them vulnerable. However, failure to recognise the loss of capacity could lead them to greater harm.

Paternalism has heavily influenced past decisions concerning autonomy and capacity and although in the 21st century we have seen a welcome move away from this to a more shared-decision making, there is still not a universal agreement on the direction medical law should take (Brazier 2006). This gap in knowledge and lack of direction is leaving people more vulnerable than ever.

Ideology of modern practice.
Translated to law.

Who lacks capacity, why.
Presentation of information can alter decisions.

This paper will analyse and discuss weaknesses in English laws regarding consent with the focus being the rights of adults with incapacity to make self-determining decisions about their own health.

Defining capacity/competence

Central to determine whether a person can make conversant choices about their own health are two concepts; capacity and competence although they are often used interchangeably between health care professionals (Freeman et al. 2005; Dawson & Kämpf 2006). World Health Organization (WHO) defines capacity as the mental ability to make a decision or to engage in an action, whilst competence is attributing to the legal judgement of the mental capacity of the individual (Newberry & Pachet 2008; Shulman et al. 2005).

Debates concerning capacity are normally found revolving around a specific decision and the capacity of the individual is usually detertmined by clinitions. On the other hand, competence can often be seen as the global determinations of capacity and is typically determined by judges. When capacity and competence co-align is often when legal professionals seek health professionals to determine competence (Sullivan 2004).

Legal Framework


Informed consent is legally required to carry out medical intervention and to do so without is considered a criminal offence (MHRA 2007). In the UK no one can consent for a competent adult and the GMC offers guidance concerning this. As for those who are not considered to have the full capacity to consent, for example; minors, patients with temporary or permanent incapacity and patients suffering from severe mental illness are regulated by UK law.

Currently patients lacking capactity as a result of an acute (eg mechanical ventilation, loss of consciousness) or chronic illness (eg dementia) aren’t able to make their own decisions and the doctor or team of healthcare professionals will make decisions in the ‘‘best interest of the patient’’ (Great Britain. England. High Court of Justice, Family Division 1993; General Medical Council 2008). A third party, such as relatives, can express preferences for the patient however they legally cannot consent or object to treatment (General Medical Council 2008).

In England and Wales, decision making in this area is governed by the Mental Capacity Act (2005) (The Stationary Office 2005). To confirm informed consent the doctor needs to establish the patient’s ability to ‘’understand, retain, believe, evaluate, weigh and use information that is relevant to medical intervention or its withdrawal’’ several court rulings support this test for capacity and it is embedded within the Mental Capacity Act (Great Britain. England. High Court of Justice, Family Division 1993; Bernal 2007).

With these current laws in place this means a patient making an irrational choice does not necessarily correlate with lack of capacity and the patients choice needs to be respected even if this has an adverse outcome. I believe the boundary between a competent irrational choice and an incapacitated choice is blurred and the current laws in place need to be reevaluated to further contrast this distinction.

Patients diagnosed with serious mental illness can also be considered to not have the capacity to make decisions about their own wellbeing, legally this is regulated by The Mental Health Act (1983) (Participation 1983). If the patient is considered a potential threat to themselves or others they can be legally detained, even against their will. Following an assessment, if their condition is thought to be treatable they can be detained to allow this treatment to commence. This is only true for psychiatric conditions and physical conditions unrelated to their mental illness cannot be treated without patient consent.

This can create difficult ethical dilemmas for healthcare professionals for example if a depressed patient was admitted to hospital following an overdose they can be detained using 5.2 of the Mental Health Act. However, physical complications such as internal bleeding as a direct result of the overdose are not covered by the Mental Health Act and the patient could therefore still refuse life-saving surgical treatment or intervention. In this example, however vulnerable the patient may be the doctor treating must still respect their autonomy. I argue that if a patient has obtained physical injury as a result of a psychological illness that there should be legal justification to treat that physical injury without the patients consent as not trying to completely treat the patient leaves the act of detaining them initially questionable.

Advanced directives

The Mental Capacity Act was introduced in 2005 to allow people to express their preferences and decisions about their medical care before they become incapacitated. Often called a ‘’living’’ will an advance directive is there to outline the treatments they wish to receive or not.

Legal Analysis (900 words)
In England and Wales, decision making in this area is governed by the Mental Capacity Act (2005) (MCA).

It has rightly been said that “the validity of consent does not depend on the form in which it was given”, and in the UK oral consent is regarded as sufficient for most interventions
Mental Health Capacity


Ethical Analysis (900 words)

Conclusion (600 words)

It has been proposed that postgraduate education and training within medicine has neglected the areas of ethical, professional and legal responsibilities in relation to treatment consent within clinical practice. https://pmj.bmj.com/content/77/906/238.short


Assessing competence to consent to treatment. Grisso and Appelbaum

In addition to being voluntary and informed, autonomous decisions require the possession of sufficient mental capacity. In English law all adults are presumed to have the capacity to make decisions on their own behalf. Legally, capacity is given a common sense definition referring straightforwardly to our ability to take actions or make decisions that influence our lives. A decision that adults lack capacity is obviously a significant one. It strips us of our right to control our lives in relation to the decision in question.

“The general rule of English law, whatever the context, is that the test of capacity is the ability (whether or not one chooses to exercise it) to understand the nature and quality of the transaction.”


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