Mental Capacity Act 2005 (MCA) authorises substitute decision-making in England and Wales, in relation to 'acts in connection with care or treatment', for a person lacking the capacity to make an autonomous decision, if it is both necessary and in his or her 'best interests'. The approach adopted by the MCA is consistent with the common law, but widens both the scope and procedures of a 'best interests' determination to allow for a general model of substitute decision-making in everyday health and social care. However, by decontextualising substitute decision-making, the MCA's procedures relating to 'best interests' may prove to be problematic in three ways: first, by failing to resolve adequately certain ethical dilemmas that pervade this area; secondly, by reducing applied substitute decision-making to a series of compulsory generalised instructions; and, finally, by necessitating deliberation but offering little practical guidance to the process of determination. Whilst the codification of five statutory principles in the MCA is designed to foster the empowerment of vulnerable adults, the realisation of these procedural and conceptual problems may have a negative impact on the implementation of the Act.
In the UK, current policies and services for people with mental disorders, including those with intellectual disabilities (ID), presume that these men and women can, do, and should, make decisions for themselves. The new Mental Capacity Act (England and Wales) 2005 (MCA) sets this presumption into statute, and codifies how decisions relating to health and welfare should be made for those adults judged unable to make one or more such decisions autonomously. The MCA uses a procedural checklist to guide this process of substitute decision-making. The personal experiences of providing direct support to seven men and women with ID living in residential care, however, showed that substitute decision-making took two forms, depending on the type of decision to be made. The first process, 'strategic substitute decision-making', paralleled the MCA's legal and ethical framework, whilst the second process, 'relational substitute decisionmaking', was markedly different from these statutory procedures. In this setting, 'relational substitute decision-making' underpinned everyday personal and social interventions connected with residents' daily living, and was situated within a framework of interpersonal and interdependent care relationships. The implications of these findings for residential services and the implementation of the MCA are discussed.
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