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Ethics and the law: mental incapacity at the end of life
  1. Rob George, Consultant and Senior Lecturer and
  2. Bridgit Dimond, Emeritus Professor
  1. Ethical aspects: Rob George is Consultant in Palliative Medicine and Senior Lecturer in Biomedical Ethics, University College London. Legal aspects: Bridgit Dimond is Emeritus Professor, University of Glamorgan

Abstract

We begin this regular feature on ethical and legal issues with the story of Jane. There are two reasons for analysing her case. First, Jane’s situation is common, and second, between April and October 2007, the Mental Capacity Act 2005 comes into force. This law has wide-ranging implications for carers of patients who may be incapable of making decisions for themselves. The main features of the law are that: (1) It formalises the status of the family or friends the patient wishes to be consulted if the patient is incapable of making a decision about care; (2) It gives clear guidance on the factors that should be taken into account when professionals are attempting to decide what is in the patient’s best interest; (3) It contains a section covering advanced refusals (what many will know as a ‘living will’). For example, if there is a document that is specific and valid then it is legally binding. At present, ‘specific’ refers to the clinical problem and ‘valid’ means the person was informed, capable and uncoerced to make the statement concerned. How this will be determined and proved remains to be seen, but the responsible doctor will have to take the final judgment on that and be prepared to defend his/her position if challenged. We will cover advanced refusals in detail in a future issue.

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