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Introduction
Recent capacity legislation, such as the UK Mental Capacity Act 2005 (MCA), aims to strike a balance between two competing principles in medical ethics: respect for (patient) autonomy, and the best interests principle. The MCA balances these competing principles by making a default presumption in favour of individual autonomy and then invoking the best interests principle in cases involving persons who do not have the capacities required to make decisions for themselves. This order of priority is explicitly reflected in the five governing principles of the Act:
Box 1
Key principles of the MCA described in the Mental Capacity Act 2005 Code of Practice (hereafter the Code: Department for Constitutional Affairs 2007, p. 20).
1.
Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise.
2.
A person must be given all practicable help before anyone treats them as not being able to make their own decisions.
3.
Just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
4.
Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.
5.
Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.
Principle 1, the key principle, is that of respect for autonomy. Principle 4 is the best interests principle, while Principle 5 invokes human rights principles as constraints on how to interpret and implement the best interests principle, seeking to protect persons who lack the capacity to make their own decisions from abuse, coercion, exploitation, disrespect or unwarranted intrusions on their privacy and liberty. The MCA thus recognises that those who lack capacity or whose capacity is partially compromised are vulnerable to such harms, and to paternalism and stereotyping. Its aim is to promote the autonomy of vulnerable persons whenever possible and, when not, to provide protections under the best interests principle.
We regard Principles 1, 4 and 5 as providing important legislative rights protections both for persons who are...