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

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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

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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

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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

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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).

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