Diminished Capacity

The purpose of this paper is to clarify what are the relevant legal and ethical issues involved when conflicts develop in the treatment of patients who suffer from diminished capacity? What are the relevant ethical issues? How could an ethics committee help in the requisite decision making required.

Challenges in Capacity and Decision Making

In America, an adult has the right to make decisions affecting their own life, whether the reasons for that choice are rational, irrational, unknown or even non-existent. However, such a right to self-determination is meaningful only if the individual is appropriately informed, has the capacity to make the decision and is free to decide without coercion. (Grisso, 1986) The concept of capacity lies at the heart of an adult’s right to make legally significant decisions such as giving or withholding consent to treatment (see British Medical Association & Law Society, 1995).

Capacity is the ability to make decisions for one. Capacity is when a person can go through the process of making their own decisions by understanding the information and choices presented, weighing up the information to determine what the decision will mean for them and then communicating that decision. If a person is unable to follow this process and make their own decision, that person is said to lack capacity. Clinical incapacity to make health care decisions is the medical judgment of a qualified doctor or other health care practitioner who determines a person to be unable to do the following: (1) Understand their medical condition, or the significant benefits and risks of proposed treatment and its alternatives and (2) make or communicate appropriate medical decisions. In England and Wales, as in most common-law jurisdictions, there is a “presumption of capacity’. An adult is considered to have the capacity to give or withhold consent to a health care intervention until the contrary is proven. (Bellhouse, Holland,Clare & Gunn 2001) The...