The Mental Capacity Act 2005 has provided unified scope in the British medical system for proxy consent with regard to medical decisions, in the form of a lasting power of attorney. While the intentions are to increase the autonomous decision making powers of those unable to consent, the author of this paper argues that the whole notion of proxy consent collapses into a paternalistic judgement regarding the other person’s best interests and that the new legislation introduces only an advisor, not a proxy with the moral authority to make treatment decisions on behalf of another. The criticism is threefold. First, there is good empirical evidence that people are poor proxy decision makers as regards accurately representing other people’s desires and wishes, and this is therefore a pragmatically inadequate method of gaining consent. Second, philosophical theory explaining how we represent other people’s thought processes indicates that we are unlikely ever to achieve accurate simulations of others’ wishes in making a proxy decision. Third, even if we could accurately simulate other people’s beliefs and wishes, the current construction of proxy consent in the Mental Capacity Act means that it has no significant ethical authority to match that of autonomous decision making. Instead, it is governed by a professional, paternalistic, best-interests judgement that undermines the intended role of a proxy decision maker. The author argues in favour of clearly adopting the paternalistic best-interests option and viewing the proxy as solely an advisor to the professional medical team in helping make best-interests judgements.
- LPA, lasting power of attorney
- MCA, Mental Capacity Act 2005
- mental competency
- advance directives
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↵i Crucially, these assumptions are not required for a best-interests judgement to be made, where decisions are not made as if we were the patient, but on behalf of the patient.
↵ii As is often the case with advance statements regarding medical treatment, whether a specific instance of providing or withdrawing/withholding treatment is actually covered by the advance statement can be a matter of controversy. In such cases, life-sustaining treatment can be continued under the MCA section 26 until the court of protection has made a decision.
↵iii The relationship between autonomy and moral authority in relation to consent to medical intervention is discussed in my forthcoming paper (see box).
Competing interests: None declared.
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