Advance decisions and the Mental Capacity Act

Halliday, Samantha

doi:10.12968/bjon.2009.18.11.42723

Cited by 6 publications

(5 citation statements)

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“…2 It follows that when a competent adult refuses treatment, under law their decision must be respected; even if it appears irrational or could place their life at risk. 13 Decision-making capacity is a key condition of legally valid consent. The Mental Capacity Act (MCA) 2005 10 states that a patient must be presumed to have capacity unless there is evidence otherwise.…”

Section: Legal Aspectsmentioning

confidence: 99%

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Refusal of treatment and decision-making capacity

Bingham

2012

Nurs Ethics

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This article explores refusal of medical treatment by adult patients from ethical and legal perspectives. Initially, consequentialist and deontological ethical theory are outlined. The concepts of autonomy, paternalism and competence are described and an overview of Beauchamp and Childress's principle-based approach to moral reasoning is given. Relevant common law is discussed and the provisions of the Mental Capacity Act 2005 in assessing competence is evaluated. In order to demonstrate the consideration of moral issues in clinical practice, ethical theory is applied to two well-known incidents: the case of Re MB, where doubt over decision-making capacity led to a paternalistic act to override a patient's choice; and the death of Emma Gough, a situation where respect for autonomy prevailed when healthcare staff acted lawfully in following a patient's refusal of life-saving treatment. Finally, guidance from regulatory bodies on the roles and responsibilities of health professionals in relation to this topic are considered.

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Section: Legal Aspectsmentioning

confidence: 99%

“…2 It follows that when a competent adult refuses treatment, under law their decision must be respected; even if it appears irrational or could place their life at risk. 13…”

Section: Legal Aspectsmentioning

confidence: 99%

Refusal of treatment and decision-making capacity

Bingham

2012

Nurs Ethics

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“…Although Germany is notorious for having meticulous legal regulations, this law is rather sketchy: it eschews many controversial issues like, for example, the decision-making capacity, the revocation of directives, the treatment of minors or advance care counselling. Compared with the German law, an example of a comprehensive and detailed statute is the English Mental Capacity Act 2005 17 18. In the international context the German law is quite liberal in that it does not stipulate many requirements for advance directives to be legally binding.…”

Section: German Law In the European Contextmentioning

confidence: 99%

A new law on advance directives in Germany

Wiesing

Jox

Hessler³

et al. 2010

J Med Ethics

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This article presents the new German law on advance directives from 1 September 2009. The history of the parliamentary process of this law is described, the present regulations are explained, their relevance for medical practice discussed and shortcomings are identified. Finally, the new law is compared with other regulations in the international context. Previously established legal practice in Germany has now become largely confirmed by the new law: An advanced directive must be respected in any decision concerning medical treatment, regardless of the stage of the illness. It can be informally revoked at any time, even with limited decision-making capacity. Nobody may be obliged to issue a directive in any way. Advance directives do not need notarisation or routine updating after certain time intervals. Provided that the patient, who is no longer mentally competent, has issued a lasting power of attorney (Bevollmächtiger), or provided that the patient has been appointed a healthcare proxy by the courts (Betreuer), this authorised surrogate must assert the patient's will. The role of the guardianship court is clarified: it only needs to be involved in cases of disagreement as to the patient's will. The new German law thus combines more legal certainty with a liberal emphasis on patient autonomy and flexible, adaptable regulations.

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“…2 An advance decision will only come into effect when the individual has lost capacity to give or refuse consent to treatment. 6 For patients facing long-term or life-threatening illnesses, ACP, which may result in the drafting of an advance decision as well as non-legally binding statements of wishes and preferences or instructions for an LPA, can be an integral part of their healthcare, 7 although not all patients wish to take part in this process. 8 ACP has recently been defined as: '.…”

Section: Introductionmentioning

confidence: 99%

Working with the Mental Capacity Act: findings from specialist palliative and neurological care settings

Wilson

Seymour

Perkins³

2010

Palliat Med

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Since October 2007 staff across health and social care services in England and Wales have been guided by the Mental Capacity Act (2005) in the provision of care for those who may lack capacity to make some decisions for themselves. This paper reports on the findings from a study with 26 staff members working in three palliative and three neurological care centres. Semistructured interviews were used to gain an understanding of their knowledge of the Mental Capacity Act, the issue of capacity itself and the documentation processes associated with the introduction of the Act and in line with advance care planning. Within this setting advance care planning is a key part of care provision and the mental capacity of service users is a regular issue. Findings show that staff generally had a good understanding of issues around capacity but felt unclear about some of the terminology related to the Mental Capacity Act, impacting on their confidence to discuss issues with service users and complete the documentation. Many felt the Act and its associated documentation had aided record-keeping in an area staff already delivered well in practice. Advance care planning in the context of the Mental Capacity Act is not as well embedded in practice as providers would like and consideration needs to be given to how and when staff should approach these issues with service users.

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Advance decisions and the Mental Capacity Act

Cited by 6 publications

References 0 publications

Refusal of treatment and decision-making capacity

Refusal of treatment and decision-making capacity

A new law on advance directives in Germany

Working with the Mental Capacity Act: findings from specialist palliative and neurological care settings

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