Beyond Capacity: Identifying Ethical Dilemmas Underlying Capacity Evaluation Requests

The Mental Capacity Act: 10 years on – the key learning areas for healthcare professionals

“…However, the literature suggests that mental capacity assessments were unlawfully carried out when there were no diagnosed impairment of the mind or brain and no reason to doubt capacity and occurred when people labeled as "a difficult patient" were perceived by others as making unwise decisions with an element of risk attached. 1,11,12 Whereas under the new legislation, if a person does meet the diagnostic threshold of the MCA, the health care professional will initiate the functional element of the assessment, which requires a person to be able to understand the decision, which is to be made, weighs up the risks and benefits, retains this information, and communicates a decision. If a person is unable to do one or more of these tasks, they would be considered to be lacking the mental capacity to make the decision for which they have been assessed.…”

Capable of More: Some Underemphasized Aspects of Capacity Assessment

“…35,36,9 There are distinctions between coercion, pressure, 37 persuasion, and advice, which cover a lot of relational territory and exist on a continuum of permissibility that varies with the clinical situation. 38 Because patients are considered competent until proven otherwise, persuasion and advice may not be unduly coercive, even when incapacity is suspected.…”

“…41,53 Medical beneficence is sometimes equated with minimizing risk and maximizing longevity; in this framework, any treatment refusal can seem irrational. 9 However, these are not every person's highest values, nor always unconditional ones for a given patient. In the end, "health is only one value among many."…”

“…5 Focusing on autonomy and paternalism in medical ethics [6][7][8] highlights an important concern but sometimes obscures others in its glare. 9 Although paralleled by the development of medical ethics, 10,11 today's concept of medical decisionmaking capacity was "drawn directly from the law's approach, not from an a priori attempt to devise an ideal model." 12 Some feel that any initial contributions of moral philosophy in this area have become diluted or equated with law and regulation, especially regarding individual autonomy.…”

Informed Consent Is the Essence of Capacity Assessment

“…That may still be in the future for many hospitals, but now is an appropriate time to prepare. 22 My final suggestions for hospital attorneys would be to encourage the use of a clinical ethics consultation service if the hospital has one. And if it is not used often, or not highly regarded, then support adding (and supporting) a better trained service, so they can be available for some of these cases where now psychiatry may be called but is not of much use through no fault of their own -it is unfair for psychiatry to be expected to be a surreptitious ethics program.…”