Assessing Capacity to Make Decisions about Long-term Care Needs: Ethical Perspectives and Practical Challenges in Hospital Social Work

Abstract

In this paper I will examine how the Mental Capacity Act 2005 regulates the assessment of decision-making capacity in England and Wales. I will argue that there are difficulties in reconciling the Act with how people make decisions in practice. I will explore how ideas from the ethics of care and from phenomenology can be used to take better account of how capacity flows from a person's relationships as well as their individual abilities. I will conclude by discussing some of the ethical issues that have arisen in my assessments of decision-making capacity and how I have tried to respond.

Keywords:

• Mental capacity
• Autonomy
• Ethics of care
• Phenomenology
• Hospital discharge
• Social work ethics

Acknowledgements

Thanks to Alexandra Sexton and Katherine Cox for very helpful discussions and comments. Thanks also to Andrew Maynard at Ethics and Social Welfare for his comments on an earlier version of this paper.

Notes

¹The concept of ‘best interests’ also raises many ethical issues but I will not discuss it here. For the ethics of best interest decision-making for people with dementia see Hughes and Baldwin (2006).

²The charity SPECAL (Specialised Early Care for Alzheimer's) has argued that it is unethical to put these kinds of questions to people with dementia. The Alzheimer's Society has criticised SPECAL's approach, claiming that it contravenes the Mental Capacity Act (Alzheimer's Society 2011; see SPECAL 2011 for their response). Reflecting on this exchange and its relevance to my own practice was one of the starting points for the current paper.