This is a response to Professor Fennell's paper on the recent influence and impact of the best interests test on the treatment of patients detained under the Mental Health Act 1983 (MHA) for mental disorder. I discuss two points of general ethical significance raised by Professor Fennell. Firstly, I consider his argument on the breadth of the best interests test, incorporating as it does factors considerably wider than those of medical justifications and the risk of harm. Secondly, I (...) discuss his contention that the apparent permeability of the line between the interests of the patient and the interests of society is something to be concerned about in itself. Since the overarching theme of the paper is the proper place of social and cultural values, my reponse considers the implications of Fennell's arguments in the light of Charlotte Brontë's novel ‘Jane Eyre’, which, through the character of Bertha Mason (the infamous ‘mad woman in the attic’) provides a provocative study of the relationship between mental disorder and society. (shrink)
A prominent but poorly understood domain of human agency is mental action, i.e., thecapacity for reaching specific desirable mental statesthrough an appropriate monitoring of one's own mentalprocesses. The present paper aims to define mentalacts, and to defend their explanatory role againsttwo objections. One is Gilbert Ryle's contention thatpostulating mental acts leads to an infinite regress.The other is a different although related difficulty,here called the access puzzle: How can the mindalready know how to act in order to reach (...) somepredefined result? A crucial element in the solutionof these puzzles consists in making explicit thecontingency between mental acts and mentaloperations, parallel to the contingency betweenphysical acts and bodily movements. The paper finallydiscusses the kind of reflexivity at stake in mentalacts; it is shown that the capacity to refer tooneself is not a necessary condition of the successfulexecution of mental acts. (shrink)
The Deprivation of Liberty Safeguards (DOLS) were recently introduced into the Mental Capacity Act (MCA) via an amendment to mental health legislation in England and Wales. As Shah (2011) discusses, the rationale behind creating these protocols was to close what is commonly referred to as the ‘Bournewood gap’; a legislative loophole that allowed a severely autistic man (H.L.) who did not initially dissent to admission to be detained in a hospital and deprived of his liberty in his ‘best (...) interests’ as judged by his clinical team. Before the implementation of the DOLS, patients who lacked the capacity to consent to admission or treatment but who were nonetheless compliant could be admitted informally and treated as .. (shrink)
The mental capacity Act 2005 (MCA; Department of Constitutional Affairs 2005) was partially implemented on April 1, 2007, and fully implemented on October 1, 2007, in England and Wales. The MCA provides a statutory framework for people who lack decision-making capacity (DMC) or who have capacity and want to plan for the future when they may lack DMC. Health care and social care providers need to be familiar with the MCA and the associated legal structures and processes. The MCA (...) is supported by a Code of Practice (Department of Constitutional Affairs 2007), which was developed after extensive consultation and includes case examples. Those involved in the assessment of DMC and the application of the MCA should .. (shrink)
This article considers the provisions of the Mental Capacity Act 2005 in respect of advance decisions. It considers the new statutory regulation of advance directives (termed 'advance decisions' in the Act) and the formalities necessary to effect an advance decision purporting to refuse life-sustaining treatment. The validity and applicability of advance decisions is discussed with analogy to case law and the clinician's reasonable belief in following an advance decision is considered. The article assesses the new personal welfare Lasting Powers (...) of Attorney, the situation where an attorney purports to refuse life-sustaining treatment on behalf of the donor, and the contrast between best interests and substituted judgment. (shrink)
When seen in the historical context of psychiatry's relatively recent discovery of violence and risk, along with society's adoption of more risk-averse attitudes, the Mental Health Act 2007 in England and Wales is an ethical and proportionate measure.
The Mental Capacity Act (2005) is an impressive piece of legislation that deserves serious ethical attention, but much of the commentary on the Act has focussed on its legal and practical implications rather than the underlying ethical concepts. This paper examines the approach that the Act takes to best interests. The Act does not provide an account of the underlying concept of best interests. Instead it lists factors that must be considered in determining best interests, and the Code of (...) Practice to the Act states that this list is incomplete. This paper argues that this general approach is correct, contrary to some accounts of best interests. The checklist includes items that are unhelpful. Furthermore, neither the Act nor its Code of Practice provides sufficient guidance to carers faced with difficult decisions concerning best interests. This paper suggests ways in which the checklist can be developed and discusses cases that could be used in an updated Code of Practice. (shrink)
Since 1998, several attempts have been made to reform the existing mental health legislation - the Mental Health Act 1983. However, all efforts thus far have been resoundingly rejected by mental health charities, psychiatrists and related professions. Following the Government's decision to abandon the draft Mental Health Bill in March 2006, plans to introduce new legislation designed to amend the existing 1983 Act have been published. This shorter bill was introduced before Parliament in November 2006. The (...) amendments focused on six key policy areas including supervised community treatment, the nearest relative, the definition of mental disorder and detention criteria. It is also intended that the Mental Capacity Act 2005 will be amended to bridge the present 'Bournewood' gap. (shrink)
The Mental Capacity Act, which received Royal Assent in April 2005, will come into force in April 2007. The Act puts into statute the legality of interventions in relation to adults who lack capacity to make decisions on their own behalf. The aim of this paper is to outline the main features of the legislation and its impact on those health care professionals who provide care and treatment for incapacitated adults. The paper sets out the underlying ethical principles that (...) govern interventions under the Act's powers and briefly explores the legal definition of incapacity and the process by which capacity is assessed. It looks at the governing notion of 'best interests' and at the legal indemnity provided by the Act for interventions that are in the best interests of an incapacitated adult. It contains sections on the Act's main innovations, including research involving incapacitated adults, lasting powers of attorney and the new Court of Protection. It also provides information on advance decisions to refuse treatment. (shrink)
This article sets out a scenario highlighting some of the issues to be faced by NHS hospitals when dealing with patients who may require treatment under the Mental Capacity Act 2005. The article sets out matters to consider when dealing with patients in A&E, assessments of best interests, emergency treatment, lasting powers of attorney and transferring patients to nursing homes. All of these matters come under the remit of the Act.
This paper considers concerns that social care research may be stifled by health-focused ethical scrutiny under the Mental Capacity Act 2005 and the requirement for an ?appropriate body? to determine ethical approval for research involving people who are deemed to lack capacity under the Act to make decisions concerning their participation and consent in research. The current study comprised an online survey of current practice in university research ethics committees (URECs), and explored through semi-structured interviews the views of social (...) researchers engaged in or exploring work concerning people who may, under the Act, lack the capacity to make decisions to consent to participate in a research programme. The paper concludes that there was a lack of overt knowledge of and reference to the implications of the Act for research and some concerns that a restrictive focus on health-related scrutiny might prevent social care research from taking place. There was also a degree of creativity shown by social care researchers in responding to changing demands and a wish to assist people in making decisions to participate where possible. (shrink)
The hospital's clinical ethics committee sought to gauge health-care professionals’ level of knowledge and usage of the Mental Capacity Act 2005 within the hospital trust. The hospital's personnel were asked to complete a 10 part questionnaire relating to the basic contents of the Act. Four hundred questionnaires were distributed and 249 (62%) were returned completed and valid for analysis. A ‘pass-mark’ of 70% (7/10) was assumed; the results showed that 48% of respondents scored ≤50% (≤5/10), 74% of respondents scored (...) <70% (<7/10) and only 24% of respondents scored ≥70% (≥7/10). It was concluded that the Mental Capacity Act 2005 was not being effectively implemented within the Trust. Measures to increase the awareness and usage of the Act have subsequently been instigated. We believe that these measures will improve the awareness and knowledge of the Mental Capacity Act 2005 within the hospital Trust lead to its better utilization. (shrink)
I examine Galen Strawson's recent work on mental action in his paper, 'Mental Ballistics or The Involuntariness of Spontaneity'. I argue that his account of mental action is too restrictive. I offer a means of testing tokens of mental activity types to determine if they are actional. The upshot is that a good deal more mental activity than Strawson admits is actional.
It is usually appropriate for adults to make significant decisions, such as about what kinds of medical treatment to undergo, for themselves. But sometimes impairments are suffered - either temporary or permanent - which render an individual unable to make such decisions. The Mental Capacity Act 2005 sets out the conditions under which it is appropriate to regard an individual as lacking the capacity to make a particular decision (and when provisions should be made for a decision on their (...) behalf). -/- To what extent does having capacity require the endorsement of certain values? Drawing on Owens et al (2009), I assess the extent to which understanding relevant information and weighing it in coming to a decision requires certain evaluative commitments. With reference to literature on anorexia nervosa and decisions informed by religious beliefs, I argue that it is difficult to avoid the conclusion that the conditions for capacity are value-laden, and that if this is so it is important to open discussion about which patterns of distorted valuing undermine capacity, and why. (shrink)
Originally motivated by a sophism, Pardo's discussion about the unity of mental propositions allows him to elaborate on his ideas about the nature of propositions. His option for a non-composite character of mental propositions is grounded in an original view about syncategorems: propositions have a syncategorematic signification, which allows them to signify aliquid aliqualiter, just by virtue of the mental copula, without the need of any added categorematic element. Pardo's general claim about the simplicity of mental (...) propositions is developed into several specific thesis about mental propositions: a) it is not judgement which gives its unity to mental propositions, but judicative acts always follow some previous apprehensive act that is simple in its own right; b) this simplicity is compatible with a certain kind of complexity, that can be explained in terms of the "causal history" of the acts of knowing; c) traditional conceptions about subject and predicate must be recast, while keeping their usual explicative power concerning logical properties; d) of course, the traditional conception about the copula has been modified, giving rise to a fully innovative conception of the nature of mental propositions. Nevertheless, this innovative conception of mental language seems still infected by certain "common sense" prejudices, which lead Pardo to propose also a provocative conception of vocal language, which I consider unnecessary. (shrink)
In this study I am going to present and discuss some of the central themes of Gustav Bergmann's theory of perception. I shall be concerned, however, only with "later Bergmann," that is, with the perceptual theory worked out in a series of essays in which Bergmann shifts from phenomenalism to a form of intentional realism. This label ("intentional realism") indicates the two dominant themes in Bergmann's later thought about perception: perceivings are analyzed as mental acts (thoughts) which are intentionally (...) related to real and mind-independent objects and states of affairs. In a timely essay, " Intentionality" (1955) Bergmann presented an impressive defense of mental acts, and although the framework of that essay was still phenomenalistic, the structural analysis of mental acts and their intentionality presented there has not been significantly altered by Bergmann in later writings. In two subsequent essays, "Acts" (1960) and "Realistic Postscript" (1963) his realistic turn was worked out in detail in the context of giving a satisfactory account of ordinary perceptual experience. These three essays will comprise the core texts of the study that follows. (shrink)
The paper makes a comparative study of james' interpretation of mental acts in terms of the felt movements of the body and the identity theory presented and defended by j j c smart and u t place. some features of remarkable similarity as well as important differences between james' view and the identity theory are discussed. a special reference is made to james' view on the question of the alleged spatial location of mental events.
Logic and psychology overlap in judgment, inference and proof. The problems raised by this commonality are notoriously difficult, both from a historical and from a philosophical point of view. Sundholm has for a long time addressed these issues. His beautiful piece of work [A Century of Inference: 1837-1936] begins by summarizing the main difficulty in the usual provocative manner of the author: one can start, he says, by the act of knowledge to go to the object, as the Idealist does; (...) one can also start by the object to go to the act, in the Realist mood; never the two shall meet. He is himself inclined to accept the first perspective as the right one and he has eventually developed an original version of antirealism which starts, not from considerations about the publicity of meaning, in the manner of Dummett, but from an epistemic standpoint, trying to search in a non-Fregean tradition of analysis of judgement and cognate notions a way of founding constructivist semantics. The present paper ploughes the same field. We concentrate on the significance, for Sundholm’s program, of the perspective that has been opened by Twardowski in his important essay on acts and products (1912. (shrink)
The essay analyses the mereological structure of an act of intentional presentation, on the basis of Benussi' and Kanizsa's works. Several aspects are discussed, among which: The existence of diverse formats of representation, their eventual continuity, the presence of subjective integrations at primary levels, and the identification of phrases in the phenomenic structure of an act of presentation. It is argued that the difference between perceptual and mental presence, as elaborated by Kanizsa, proves to be a valid instrument for (...) the categorial analysis of phenomenic appearances. (shrink)
The Mental Capacity Bill endangers the vulnerable by inviting human rights abuse. It is perhaps these grave deficiencies that prompted the warnings of the 23rd Report of the Joint Committee on Human Rights highlighting the failure of the legislation to supply adequate safeguards against Articles 2, 3 and 8 incompatibilities. Further, the fact that it is the mentally incapacitated as a class that are thought ripe for these and other kinds of intervention, highlights the Article 14 discrimination inherent in (...) this and related legislation. The financial, medical and research interests that underpin the legislation highlight how the legilsation endangers the ulnerable. It appears to be both a responsibility shifting exercise. Most alarmingly of all, efforts to permit non-therapeutic research on the non-consenting vulnerable as well as sterilisation and abortion on those who do not consent suggest that the legislation heralds a new era o gross human rights abuse in instutions around the UK. (shrink)
This chapter examines whether, and in what sense, one can speak of agentive mental events. An adequate characterization of mental acts should respond to three main worries. First, mental acts cannot have pre-specified goal contents. For example, one cannot prespecify the content of a judgment or of a deliberation. Second, mental acts seem to depend crucially on receptive attitudes. Third, it does not seem that intentions play any role in mental actions. Given these three constraints, (...)mental and bodily actions appear to have a significantly different structure. A careful analysis of the role of normative requirements, distinguishing them from instrumental reasons, allows the distinction between mental and bodily forms of action to be clarified. Two kinds of motives must be present for a mental act to develop. The first kind is instrumental: a mental act is performed because of some basic informational need, such as the need to "remember the name of that play". The second kind is normative: given the specific type of mental action performed, there is a specific epistemic norm relevant to that act (such as truth, coherence, fluency, or consensus). These two motives actually correspond to different phases of a single mental act. The first motivates the mental act, i.e. makes salient the corresponding goal. The second offers an evaluation of the feasibility of the act, on the basis of its constitutive normative requirement(s). Conceived in this way, a characterization of mental acts avoids the three difficulties mentioned above. The possibility of pre-specifying the outcome of epistemic mental acts is blocked by the fact that such acts are constituted by strict normative requirements. That mental acts include receptive features is shown to be a necessary architectural constraint for mental agents to be sensitive to epistemic requirements (through emotional feelings and other normatively relevant attitudes). Finally, the phenomenology of intending is shown to be absent in most mental acts; the motivational structure of mental acts is, rather, associated with error- signals and self-directed doubtings. Mental acts need to be recognized as a natural kind of action meant to normatively control and enhance cognitive efficiency according to current processing needs. (shrink)