Mental Capacity Act The Mental Capacity Act was passed in 2008 in Parliament so that Singaporeans can appoint proxy decision-makers before they become mentally incapacitated by illnesses like dementia or brain damage.
The Act, which came into force on 1 March 2010, is broadly modelled on the UK’s own Medical Capacity Act 2005 (Gillespie, 2010) and individuals can do so through a new statutory mechanism called “Lasting Power of Attorney” or LPA – which enables adult individuals to prospectively appoint one or more persons they trust, to act and make decisions in their best interests, in the event that they should lose mental capacity (MCYS 2010). Many have welcomed it as a timely measure to address the social realities of a fast ageing population in Singapore.
But the significance of the Act is more than a social legislation; it is also for the citizens to appreciate the essential value of the Act as an affirmation of: (i) respect for an individual’s autonomy, (ii) empowerment, and (iii) universality. (MCYS 2010) The Act enables people to plan ahead and gives them the power to make choices for their future before they lose their mental capacity (MCYS 2010). The Act applies to everyone who deals with a person over 21 years old who lacks mental capacity to make specific decisions (MCA 2008).
Doctors have often make decisions on behalf of patients who are not able to do so either because of their mental or intellectually disabilities, and this new legislation clarifies this approach in the form of statute law (Gillespie, 2010). With the new Act in place, it poses some medical and legal challenges (Chan 2010). The Act is a piece of legislation that deserves serious ethical attention, but much of the commentary on the Act has focussed on its legal and practical implications rather than the underlying ethical concepts (Hope, Slowther & Eccles, 2009).
Hope, Slowther & Eccles (2009) highlighted the fact neither the Act nor its Code of Practice provides sufficient guidance to caregivers face with difficult decisions concerning best interests. It is likely that this would be similar in the Singapore context in times to come. The SASW Code of Professional Ethics stipulated that social workers are to act on behalf of clients who lack the capacity to make an informed decision and steps to safeguard the interests and rights (SASW, 2004, p. 3). As stated in the Act, decisions are to be made in the person’s best interest.
The argument would be how do we define “in the best interest”? The ‘best interest’ approach in Britain has a strong element of “substituted judgement”, which literally means making a decision that the incapacitated person would have chosen to make, had he been in a mental capacity to do so (Chan, 2010). A person can be mistaken, for example, about what is best for him or her; or can make a valid decision knowing that it is unlikely to be in his or her best interests (Hope, Slowther & Eccles, 2009).
Halliday (2009) cited that if a person with capacity makes a valid and applicable advance refusal of treatment, that refusal will take effect once she lacks capacity regardless of whether it could be considered consistent with her best interests, or of whether her family and/or the health-care professionals caring for her agree with that anticipatory refusal. Issues that are debatable include who should have a say in treatment decisions before the LPA kicks in and which of the decisions should doctors make in terms of sustaining the individual’s life or preventing his or her condition from worsening.
Dimond (2008) cited that an advance decision, or advance refusal or living will is now placed on a statutory basis should resolve many problems for health professionals, and it may be that they may become a popular device for those who are diagnosed with chronic crippling conditions who want to be able to determine the way they are treated at a time when they have lost the requisite mental capacity. However, there are some issues still to be resolved. For example, can a person refuse by means of an advance decision basic care, i. e. nutrition, hydration and pain relief?
Advance decisions to refuse treatment are not as yet widespread in medical care, but are undoubtedly encountered more frequently (Cowan 2007). The concept of what is in the best interest of a person may be new or difficult to appreciate and operationalize. There will be occasions when the decision-maker might be faced with strong opposition from other members of the family whose interests may not be aligned. When multiple clients are involved, the same question arises: who is the primary client, and therein, whose goals should be identified, clarified, and pursued?
This question is especially poignant when differing goals appear to conflict, as in some cases. There is a need to know whether it is the client’s best interests or her rights and freedoms that ought to be given greater weight and so which ought to act as a constraint on the other (Herissone-Kelly, 2010). And even when a primary client can be identified, an important consideration is whether the client’s desired decision can be considered when she is mentally ill and who should be socially responsible for such decision?
The holistic approach to the determination of the best interests of a person who lacks decision-making capacity is further enhanced by the requirement that decision makers consult with others about care and treatment. (Griffith & Tengnah, 2008). The Act provides a checklist of common factors that must be taken into account before a judgement about best interests is made (COP MCA 2008, section 6. 3) and this includes taking into account the individual’s past and present wishes. The duty of the medical team to consult with other people must be balanced against the client’s right to confidentiality.
Principles of confidentiality are also potentially threatened when there is a conflict between the clients and the caregiver. Family members and caregivers may disagree or have different views about what the client would want in terms of care and treatment (Griffith & Tengnah, 2008) and often the proxy decision-maker end up making decisions based on what families or relatives expect. As the needs and rights of the clients are being threatened here, should we as social worker break the confidentiality that threatens the welfare of the clients and the caregivers?
We will be trapped with the ethical ambiguity of these situations, weighing up the rights and needs of the parties concerned. Fundamentally, the Mental Capacity Act calls for a change in mindset. People who lack capacity are not simply human beings who have lost their right to dignity, autonomy and the fullest life possible. On the contrary, we are called to respect them as persons and act in their best interests. Herissone-Kelly (2010) felt that this principle that a person lacks the capacity to make a certain type of decision acts as a check on paternalism.
Equally clearly, it mirrors the distinction between substantive autonomy (determined by reference to the output of a piece of practical reasoning, i. e. , by reference to the decision itself) and procedural autonomy (determined by reference to the nature of the reasoning that underlies a decision) (Herissone-Kelly 2010). Even so, dangers lurk in any attempt to collapse respect for the client autonomy (or, in this case, a simulacrum of respect for autonomy, as the client lacks autonomy in the relevant sphere) into a concern with a client’s best interests Herissone-Kelly 2010).
The SASW Code of Ethnics also stipulate that social workers affirm the right to the client’s self determination which needs to be preceded by ensuring that the client is both aware of and has assessed alternative options (SASW, 2004, p. 3). The collapse remains safe so long as judgments about what is good for the client are subordinated to a determination to do what she would herself choose (Herissone-Kelly 2010). Another clause in the Code of Practice asks the caregiver to take into account the beliefs and values of the individual, before he or she became mentally incapacitated.
This may not adequately embrace individual values and belief systems and no provision have been made in the Singapore’s Mental Capacity Act for any sort of Advanced Directive. It is argued that people who refuse certain treatments for certain conditions may not have foreseen that new cures with lesser burdens and which are less invasive may become available in 20 years’ time when they lose their capacity. Losing one’s mental capacity is a disturbing prospect yet a real possibility, especially for those who are advancing in age (Yee 2009).
Unlike elderly people of the past, elderly now and in the future are likely to be wealthier and own far more assets. Five years ago, there were about 22,000 people with dementia in Singapore. This is estimated to grow to 53,000 in another decade (Tan, 2010, Quek, C. & Ang, YY. 2010). There is a need for the Act to protect the elderly as highlighted in a court case where a 92 year old woman sue a local bank for freezing her $8. 9 million account and the Bank is insisting that it was acting prudently and refused to accept any instructions on any of Madam Hwang’s accounts until she was shown to be mentally fit (Lum, 2008).
Social workers limit the rights to self-determination where in the social worker’s professional judgment, clients’ actions or potential actions pose a serious, foreseeable and imminent risk to themselves and others (SASW, 2004, p. 3). At its core, the Act affirms the dignity of all individuals, especially that of the mentally incapable and the vulnerable in our midst. It draws on what are the noblest and most admirable traits in humanity – our capacity for empathy, compassion and care, our ability to step up to the call of duty and mutual responsibility.
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