Does The Mental Capacity Act Restrict Or Enhance Personal Freedom And Autonomy?

The Mental Capacity Act 2005 (MCA 2005) introduced a statutory framework for advance decision making in England and Wales building upon the common law recognition of advance decisions. Academics considered that a bias may operate against upholding advance decisions refusing life-sustaining treatment 1. It’s commonly felt that judges usually give decisions favouring preservation of life and making advance decisions invalid on various grounds. Recent case-law indicates that a high level of specificity is required for advance refusals of life-sustaining treatment and, in some capacity must be demonstrated at the time of making the decision. This essay will argue the legal back ground of the advance decisions and relevant case law. There are suggestions that advance care planning (ACP) instead of advance decisions (ADRT) may be more helpful when it comes to the practice of law on ground 2.

The Mental Capacity Act (MCA) 2005 states that “an act done, or decision made, under this Act, for or on behalf of a person who lacks capacity must be done, or made, in his best interests’. The Deprivation of liberty safeguards are a legal framework introduced into the mental capacity act 2005 (MCA) by the mental health act 2007 (MHA). This legislation protects the rights of people in care homes or hospitals, where the care is imputable to the state, who lack capacity or have a mental dysfunction to make decisions regarding their care and treatment (Jones, 2008 p 383). DOLS ensures against arbitrary deprivation of liberty (dol) which was identified in the Bournewood Case ( HL v UK 45508/99 (2004) ECHR 471). The judgement in this case determined that in order to adhere to the ECtHR, lawful detention needed to meet Article 5 (1) that requires a ‘procedure prescribed by law’ and Article 5 (4) which requires a means to apply to a court to see if deprivation of liberty was unlawful (dols code of practice 2008). As such, the DOLs are designed to protect the rights of people who fall within the scope of the act.

The Mental Capacity Act is legislation which increases the legal rights of the person with dementia to be involved in decisions about their own health and care. The Act also means that when somebody no longer has the mental capacity to be involved in decision making themselves, their carer will have the right to be consulted about decisions being made on behalf of the person with

In order to exercise your duty of care, staff must ensure that any decisions and choices people make are based on understanding the consequences and potential risks of what they want to do. Care worker role is not to prevent people from doing what they want, but making sure that they know the possible results. This can result in some very finely balanced decisions, especially where there are concerns about someone’s capacity to understand the possible risks and consequences from their actions. The question of capacity to make decisions is highly complex and staff must consider it carefully. It is very easy to make the assumption that because someone has dementia, a learning disability or a long-term mental health problem, for example, they lack the capacity to make decisions about important issues affecting their own life.

| The Mental Capacity Act 2005 prevents people who lack mental capacity from being mistreated or wilfully neglected.

My chosen reflection piece is on ageism, see appendix one. I will provide evidence reflecting the links between diabetes and depression, which will form my chosen seminar topic, see appendix two. I will then critically analyze the mental capacity Act (2005) and relate it to my specific scenario, see appendix three. I will explore how nurses the Act within nursing practice, decision- making, and how we access a person’s capacity to make specific decisions. I will explore any ethical issues that may arise following the principles of Mental Capacity Act (2005).

This act is made to help protect those who are unable to make decisions for them. This could be due to a mental health condition, a learning difficulty or a brain injury. The purpose of this act is to allow adults to make as many decisions for them as possible. For example, somebody with dementia might make a decision about whether they want future medical treatment or not. This act links to people who are suffering with dementia as within the later stages of dementia they are unable to make decisions for themselves and consequently, the Mental Capacity Act ensures that the individual has somebody to make the decisions for them.

Moreover, through the Mental Capacity Act (2005), it provides a legal framework for making decisions on behalf of the individual who lack the capacity to make decisions for themselves as long as it does not restrict the rights and freedom of action.

To begin with the person is the centre of the plan, to be consulted with and their views must always come first: It should include all aspects of their care, and every professional should work together to provide it. (Leathard 2000) Autonomy refers to an individuals’ ability to come to his or her own decisions and requires nurses to respect the choices patients make concerning their own lives (Hendrick 2000).However Gillon Argues that the principle respect for autonomy may need some restriction, otherwise we may be morally obliged to respect an autonomous course of action with unthinkable consequences.( Gillon 1986) Every human being has an intrinsic value, they all have a right to well being, to self-fulfilment and to as much control over their own lives as is consistent with others (British Association of Social Workers 2002).Professional Judgement and patient preference cannot be suspended if practice is to be safe and effective rather than routine(DOH 2005) Alex had to attend this session as it was within his Timetable, how could it have been effective?, he was unhappy and

4.1 - Describe ethical dilemmas that may arise in own area of responsibility when balancing individual rights and duty of care There are a number of factors to consider in the ethics of providing support to vulnerable adults in the community, it is the duty of the organisation, staff and other professionals (psychiatrist, care coordinator, O.T and social worker), to work alongside and ensure the ethic of delivery to individuals is: • The “right service” (appropriate) • In the “right amount” (to meet the clients need) • Delivered by the “right provider” (qualified and competent) • To the “right person” (a client that needs the service); • In the “right setting” (least restrictive, most integrated setting as appropriate to the person’s needs); • At the “right time” (a balance between clients preference and provider ability); •

In regards to that statement, the book also states that there are four specific themes of historical and clinical importance that must be taken into consideration when a clinician determines the most beneficial treatment settings. Those specific themes include: “1) Patients should be treated in those settings that least interfere with their civil rights and freedom to participate in society. 2) Patients should be able to disagree with clinician recommendations for care. While this includes the right to refuse any care at all, it also includes the right to obtain care in a setting of their choice (as long as considerations of dangerousness and mental competency are satisfied). It implies a patient's right to seek a higher or different level of care than that which the clinician has planned. 3) Patients should be informed participants in defining their care plan. Such planning should be done in collaboration with their healthcare providers. 4) Careful consideration of State laws and agency policies is required for patients who are unable to act in their own self-interests. Providers need to consider whether or not the person is “gravely” incapacitated, suicidal, or homicidal; likely to commit grave bodily injury; or, in some States, likely to cause injury to property. In such cases, State law and/or case law may hold providers responsible if they do not commit the patient to care, but in other cases programs may be open to lawsuits for forcibly holding a patient (TIP,

The first ethical dilemma is determining if the patient has determine-making capacity (Brady, 1996). Does the patient understand all the information concerning her condition and treatment? If the patient does have decision-making ability, it is her or her right to deny medical advice. If the patient does not have the decision-making capacity then the therapist must find appropriate

There are many diverse type of reasoning that is related to the justification of the mandatory treatment or decision by the patient. It is discussed that the autonomous decision of refusal of health care ought to be respected as far as psychiatry is concerned. It is argued also that a patient who do not accept health care without clear reason should be given necessary treatment to ensure the best interest of the patient is served. There could also arise some of the people who are not competent, who may have their reasons on health care refusal; there decisions should be well consider.

Still, the idea – and practice – remains deeply controversial. Concern often focuses on a lack of confidence in the notion that mental illness or emotional pain should ever be regarded as “incurable”. A troubling question then arsies as to whether we might be too carelessly priviliging the right to autonomy, and undermining our responsibility to protect vulnerable people from harm.

Smale 93 (O'Byrne, 2009) identified 3 models of assessment, questioning, procedural and exchange. Whilst the exchange is the ideal model by which to fulfil the aims of the NHSCCA 1990 documents don’t always allow for that and focus tends to be on weaknesses of individuals or medial needs as opposed to strengths. Mental illness is such a complex issue and something that can fluctuate quickly depending on circumstances. This reason alone makes determining mental capacity and assessment process very difficult.