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
Student ID: 21777012
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
Student ID: 21777012
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
Student ID: 21777012
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
Student ID: 21777012
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. The Act also affirms
the importance of family, social and community ties – the key fabric of our society
(MCYS 2010).
Student ID: 21777012
Bibliography
08 September 2010 The Business Times When the mind drifts, who'll do your sums?, viewed on 27 March 2011, http://news.asiaone.com/Business/My+Money/Planning+Your+Retirement/Investment+And+Savings/Story/A1Story20100907-235986.html
10 February 2011 AsiaOne Nursing homes used government payouts without patients' authorisation, viewed on 25 March 2011, http://news.asiaone.com/News/AsiaOne+News/Singapore/Story/A1Story20110210-262900.html
16 September 2008 AsiaOne Mental Capacity Bill passed in Parliament, viewed on 26 March 2011, http://www.asiaone.com/Health/News/Story/A1Story20080916-88127.html
19 May 2010 Challenges surrounding Mental Capacity Act, viewed on 28 March
2011, http://entertainment.xin.msn.com/en/radio/938live/calocalnews.aspx?
cp-documentid=4097717
21 May 2010, The Mental Capacity Act: Code of Practice Seminar, viewed on 24
March 2011,
http://app1.mcys.gov.sg/PressRoom/TheMentalCapacityActCodeofPractice
Seminar.aspx
Basu, R. (2007) Proposed Mental Capacity Bill Protect dementia patients like
we do our children, The Straits Times 19 August 2007
Basu, R. (2010) Protect dementia patients like we do our children The Straits Times 19 August 2007
Chan, W C (2010) Challenges surrounding Mental Capacity Act, The Straits
Times 19 May 2010
Chong, A. (2008) Lighting a way out of mental illness The Straits Times 14
October 2008
Code of Practice Mental Capacity Act 2008 Ministry of Community Development,
Youth and Sports
Student ID: 21777012
Cowan, J (2007) "Are we prepared for the Mental Capacity Act?", Clinical
Governance: An International Journal, Vol. 12 Iss: 1, pp.64 – 70
Dimond, B. (2008) The Mental Capacity Act 2005 and decision-making: advance
decisions British journal of nursing (Mark Allen Publishing), 2008,
Vol.17(1), pp.44-6
Dimond, B. (2008) The Mental Capacity Act 2005: children and young persons
British journal of nursing (Mark Allen Publishing), 2008, Vol.17(4), pp.248-50
Dimond, B. (2008) The Mental Capacity Act 2005: mental capacity and mental
illness British journal of nursing (Mark Allen Publishing), 2008, Vol.17(3),
pp.182-4
Gillespie, G (2010) Assessing mental capacity Medical Protection Society Asia
Casebook Vol. 18 no. 3, September 2010
Griffith, R. & Tengnah, C. (2008) Giving the 'flu vaccine: the Mental Capacity Act
2005 in practice British journal of community nursing, Sep, 2008, Vol.13(9),
pp.433-7
Griffith, R. & Tengnah, C. (2008) Mental Capacity Act 2005: advanced decisions
to refuse treatment British journal of community nursing, Aug, 2008,
Vol.13(8), pp.391-4
Griffith, R. & Tengnah, C. (2008) Mental capacity Act 2005: assessing decision-
making capacity British journal of community nursing, Jun, 2008, Vol.13(6),
pp.284-8
Griffith, R. & Tengnah, C. (2008) Mental capacity act 2005: lasting powers of
attorney British journal of community nursing, Dec, 2008, Vol.13(12),
pp.577-81
Student ID: 21777012
Griffith, R. & Tengnah, C. (2008) Mental Capacity Act 2005: statutory principles
and key concepts British journal of community nursing, May, 2008,
Vol.13(5), pp.233-7
Griffith, R. & Tengnah, C. (2008) Mental Capacity Act: determining best interests
British journal of community nursing, Jul, 2008, Vol.13(7), pp.335-41
Griffith, R. & Tengnah, C. (2008) Restraint and the Mental Capacity Act 2005
British journal of community nursing, Oct, 2008, Vol.13(10), pp.487-9
Halliday, S (2009) Advance decisions and the Mental Capacity Act British journal
of nursing (Mark Allen Publishing), 2009, Vol.18(11), pp.697-9
Harris, D. ; Cohen Fineberg, Iris (2011) Multidisciplinary palliative care teams'
understanding of Mental Capacity Act 2005 'best interest'
determinations International journal of palliative nursing, Jan, 2011,
Vol.17(1), pp.20-5
Herissone-Kelly, P. (2010) Capacity and Consent in England and Wales: The
Mental Capacity Act under Scrutiny Cambridge Quarterly of Healthcare
Ethics, 2010, Vol.19(3), pp.344-352
Hope, T ; Slowther, A ; Eccles, J (2009) Best interests, dementia and the Mental
Capacity Act (2005) Journal of medical ethics, Dec, 2009, Vol.35(12),
pp.733-8
Koh, D. (2011) How to be prepared for mental incapacity The Straits Times 14
March 2011
Ling, G. (2010) Not just the elderly Mind Your Body, The Straits Times 23 February 2010
Lum, S (2008), Woman, 92, ordered to take mental test, The Straits Times 13
December 2008
Student ID: 21777012
Mathavan, S. A, (2008), Protecting those who lose their mental capacity, The
New Paper 15 February 2010
Menon, S (2009) The Mental Capacity Act (2008): Code of Practice, The
Singapore Family Physician Vol 35 No 3 Jul-Sep 2009:18
Ng, G (2010) Woman's bank account closed without her knowledge my paper 06 September 2010
Popatlal, A (2008) Draft Mental Capacity Bill to be fine-tuned following feedback
Channel NewsAsia 06 March 2008
Popatlal, A. (2010) Proposed Mental Capacity Bill to plug holes in current
legislation, Channel NewsAsia 14 August 2007
Quek, C. & Ang, YY.. (2010) 40 people appoint proxy decision makers The Straits Times 24 May 24 2010
Ramesh, S (2007) Singapore to introduce Mental Capacity Bill as population
ages, Channel NewsAsia 14 August 2007
Sim, M (2010) Mental Capacity Act kicks in next month The Straits Times 13
February 2010
Sim, M. (2010) Caring for dementia sufferers The Straits Times 06 March 2010
Tan E. L (2010) Experts warn Asia dementia patients of fraud scams Reuter 23
October 2010
Tan, L. (2010) Think The Straits Times 22 April 2010
Tan, L. (2010) What does the Mental Capacity Act mean for you? The Sunday
Times 20 April 2010
The Singapore Association of Social Workers 2004- Code of Professional Ethics, Singapore Association of Social Workers, Singapore, viewed on 24 February 2009, http://www.sasw.org.sg/public/documents/SASWCodeofEthics2004.pdf
Student ID: 21777012
Wong, M. (2010), Mental Capacity Act will kick in next month, Channel NewsAsia
12 February 2010
Wong, R. (2010) The 3 keys to preserving family wealth my paper 08 November 2010
Yee, M (2009), Mental Capacity Act: What’s in it for me? The College Mirror -
June 2009: Vol 35(2)
Student ID: 21777012
Top Related