scholarly journals Decision-making competence in adults: a philosopher's viewpoint

2001 ◽  
Vol 7 (5) ◽  
pp. 381-387 ◽  
Author(s):  
Donna Dickenson
Keyword(s):  
Mental Health ◽  
Decision Making ◽  
Mental Disorder ◽  
Vegetative State ◽  
Persistent Vegetative State ◽  
Legal Implications ◽  
Consent To Treatment ◽  
The Law ◽  
Informal Carers ◽  
The Way

What does it mean to respect autonomy and encourage meaningful consent to treatment in the case of patients who have dementia or are otherwise incompetent? This question has been thrown into sharp relief by the Law Lords' decision in R.v Bournewood Community and Mental Health NHS Trust, ex parte L (1998). The effect of the Law Lords' ruling in the Bournewood judgment is to reinforce problematic and serious anomalies in the way we view patients whose competence is in doubt because of their mental disorder. Others, such as relatives and informal carers, are frequently allowed to decide on behalf of adults whose competence is doubtful in a way that English law generally abhors, even for totally incompetent patients in a persistent vegetative state. This raises profound questions about autonomy. And incompetent adults' consent to treatment is not required to be of the same quality as it is for the rest of us: mere absence of resistance will do. This paper will explore the philosophical, jurisprudential and legal implications of this difference. Throughout I will be more concerned with the ramifications of a finding of incapacity than with how such a finding is made (for the latter, see such classic texts as Applebaum & Roth (1982), Grisso & Applebaum (1998) and Bellhouse et al (2001)).

Assessing Decision-Making and Capacity in Minimally-Aware Patients

2005 ◽  
Vol 45 (3) ◽  
pp. 249-255 ◽  
Author(s):  
Anthony K Coughlan ◽  
Keith J B Rix ◽  
Vera Neumann
Keyword(s):  
Decision Making ◽  
Scientific Theory ◽  
Vegetative State ◽  
Persistent Vegetative State ◽  
Case Law ◽  
Clinical Method ◽  
Standard Of Proof ◽  
Legal Standard ◽  
Legal Implications ◽  
Important Challenge

The assessment of decision-making by minimally-aware patients represents an important challenge for medicine, science and the law. This paper seeks to assist the dialogue between these disciplines by discussing three aspects: the difficulties inherent in establishing a reliable means of communication with the patient; the difficulty of exploring understanding and decision-making once a means of communication has been determined; and the legal implications including problems that may arise with the `balance of probabilities' legal standard of proof. These aspects are discussed using the example of patients who have very severe acquired brain damage or are in states which verge on the `persistent vegetative state'. The discussion is informed by existing case law and by reference to clinical method and scientific theory including binomial theory.

Ethical issues in neurology

2019 ◽  
pp. 41-52
Author(s):  
Jan J. Heimans
Keyword(s):  
Decision Making ◽  
Cognitive Functioning ◽  
Ethical Issues ◽  
Vegetative State ◽  
Persistent Vegetative State ◽  
Brain Dysfunction ◽  
Emotional Disturbances ◽  
Neurologic Diseases ◽  
Surrogate Decision

Neurologic diseases may lead to brain dysfunction and consequently to impairment of consciousness, cognitive decline, and emotional disturbances. These conditions may give rise to a wide array of ethical issues. Cerebral dysfunction can be temporary but many conditions are chronic and/or progressive, and the impact of such long-lasting brain dysfunction on decision-making processes is substantial. In this chapter, disturbances of consciousness and the decision-making process, with focus on communication during the various stages of coma, persistent vegetative state, and permanent vegetative state, are discussed. Special attention is paid to the role of proxies, who often have to act as surrogate decision-makers. Further, some aspects of brain death and organ donation are reviewed and the role of the neurologist as a specialist with respect to brain functioning, but also as an advocate acting in the interest of the patient and the patients’ relatives is depicted. Subsequently, consequences of impaired decision-making capacity in dementia and other diseases leading to diminished cognitive functioning are discussed and a short reflection is dedicated to driving ability. Ultimately, ethical issues in connection with decisions on withdrawing and withholding life-sustaining treatment including end-of-life decisions are discussed, both in neurologic diseases with diminished cognitive functioning but also in neurologic disorders, like motor neuron disease, where cognitive functions are preserved.

The law relating to mental capacity and mental health

2013 ◽  
Author(s):  
Kay Wheat
Keyword(s):  
Mental Health ◽  
Mental Disorder ◽  
Health Care Professionals ◽  
Well Being ◽  
Mental Capacity ◽  
Best Interests ◽  
Decision Making Capacity ◽  
Mental Capacity Act 2005 ◽  
The Law ◽  
Mental Capacity Act

This chapter will examine two key areas of law relating to medical treatment and care of those with mental disorder. The question of decision-making capacity is important for health care professionals, and other carers and agents dealing with older people. The law relating to this is covered by the Mental Capacity Act 2005 supplemented by previous case law where this is still relevant, and the key aspect of the law is the ability to treat people without capacity in their best interests. However, in the case of some patients, it may be necessary to use the Mental Health Act 1983. This legislation is focussed, not on the capacity of the patient, but upon the effect that a mental disorder can have upon the patient risking damage to their own well-being, or to the well-being of others. The relationship between the two areas is not always clear.

scholarly journals Consent to Treatment: Legal and Ethical Aspects

1981 ◽  
Vol 5 (11) ◽  
pp. 207-209
Author(s):  
Paul Bowden
Keyword(s):  
Mental Health ◽  
Public Policy ◽  
Mental Disorder ◽  
Medical Officer ◽  
Working Party ◽  
Ethical Aspects ◽  
Mental Health Act ◽  
Consent To Treatment ◽  
Patient’S Will ◽  
Policy Committee

In anticipating the consultative paper A Review of the Mental Health Act, 1959 the College's Public Policy Committee prepared a report in 1974 (News and Notes, October, November 1974). The second of six points covered in the report related to compulsory detention and treatment. It reads:The Working Party are firmly of the view that compulsory powers should include the power to treat patients compulsorily for any form of mental disorder, but has doubts as to how far certain types of treatment should be applied on the sole authority of the Responsible Medical Officer against the patient's will or when he is incapable of giving consent.

scholarly journals Bournewood: Law and capacity

1999 ◽  
Vol 23 (3) ◽  
pp. 177-177 ◽  
Author(s):  
M. Devakumar
Keyword(s):  
Mental Health ◽  
Community Mental Health ◽  
Mental Disorder ◽  
Common Law ◽  
Appeal Court ◽  
Assessment And Treatment ◽  
The Common ◽  
The Law ◽  
The Right ◽  
Health Trust

The Law Lords in June 1998 overturned the judgement in the matter of L. v. Bournewood. The Law Lords, on a majority decision, were of the opinion that a compliant incapacitated patient such as L. does not need the formal powers of the Mental Health Act and admission to hospital and subsequent assessment and treatment for mental disorder can be based on the common law principles of necessity. However, this position is quite contrary to the Appeal Court judges' view, “The right of a hospital to detain a patient for treatment for mental disorder is to be found in, and only in, the 1983 Act, whose provisions apply to the exclusion of the common law principle of necessity” (L. v. Bournewood Community Mental Health Trust, 1997).

The law relating to mental capacity and mental health

2020 ◽  
pp. 907-916
Author(s):  
Kay Wheat
Keyword(s):  
Mental Health ◽  
Mental Disorder ◽  
Health Care Professionals ◽  
Mental Capacity ◽  
Best Interests ◽  
Decision Making Capacity ◽  
Mental Capacity Act 2005 ◽  
The Law ◽  
Mental Capacity Act ◽  
The Relationship

This chapter examines two key areas of law relating to medical treatment and care of those with mental disorder. The question of decision-making capacity is important for health care professionals, as well as other carers and agents dealing with older people. The law relating to this is covered by the Mental Capacity Act 2005 supplemented by previous case law where this is still relevant, and the key aspect of the law is the ability to treat people without capacity in their best interests. However, in the case of some patients, it may be necessary to use the Mental Health Act 1983. This legislation is focused, not on the capacity of the patient, but upon the effect that a mental disorder can have upon the patient risking damage to their own wellbeing, or to the wellbeing of others. The relationship between the two areas is not always clear.

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