Mental Capacity Act

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  • Topic: 2008, Decision making, Singapore Press Holdings
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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....
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