Honorary Clinical Associate Professor, Department of Psychiatry, Faculty of Medicine, The Chinese University of Hong Kong

In routine clinical practice, a treatment decision can only legally proceed after patients are adequately informed and have voluntarily granted their consent for said decision.1,2 However, in patients whose mental capacity are compromised, a decision made on their behalf from an unauthorized third party may have legal, practical, or ethical repercussions especially when rapid treatment decisions are required.1,2 In a recent interview with Omnihealth Practice, Dr. Jess Leung brought out the issues encountered by persons without decision-making capacity (i.e., also known as mentally incapacitated persons, MIPs) and their carers. As everyone has a risk of losing their mental capacity, Dr. Leung called for earlier preparation by introducing the enduring power of attorney (EPA), advance directives (AD) and will, collectively known as the ‘3 instruments of peace (平安三寶)’, to protect our interests while we are still mentally sound.

Mental capacity is a medico-legal concept which presumes that all individuals are capable of making a decision unless there is evidence demonstrating otherwise
MIP Care Resource Connect (MIPCRC) is a multi-disciplinary charitable organization that aims at delivering relevant knowledge and resources to the carers and professionals taking care of mentally incapacitated persons (MIPs), as well as raising public awareness on the issues stemming from mental incapacity
According to a survey conducted by MIPCRC, the public’s understanding of mental incapacity and the importance of early preparation remains poor: Among respondents with family member(s) who could no longer make decision for themselves (i.e., became a MIP), more than 80% of the respondents found the ‘3 instruments of peace (平安三寶)’ unavailable for their family members
Clinicians, especially the general practitioners, could play the role of an initial advocate for MIPs by directing their carers to appropriate sources of information such as the MIPCRC online platform

The general concept of mental capacity

Legally, all individuals are presumed to have the mental capacity to make a decision unless they are assessed by the clinicians to be unable to comprehend, retain, or make use of the information pertinent to making decisions, or are unable to communicate the decision.1 However, mental capacity is a decision/task, time and situation-specific concept.1,2 An individual who does not have the capacity to make one decision may be capable in making another based on the complexity of the decision and its associated risks and benefits, meaning that different levels of capacity are required for different types of activities.1

While not being considered an illness, mental capacity can result from various causes or risk factors that are classified into 2 main categories, namely neurodevelopmental disorders and acquired brain injuries.3 The former category describes conditions present at birth or early childhood that impair learning ability and handling of daily tasks, with example disorders such as Down syndrome, autism, cerebral palsy, and prenatal or neonatal infection of the central nervous system or drug poisoning.3 The latter depicts any kind of adulthood traumatic brain injury, neurological disorders including but not limited to car accidents, stroke, dementia, hypoxic brain, and severe mental illnesses.3

Despite a prevalence of >40% among acutely ill inpatients in medical wards, mental incapacity remains rarely recognized in clinical practice. In a study published in the Lancet, out of the 50 patients who were certified to have mental incapacity by the study investigators, only 12 (24%) of them were judged to be lacking mental capacity by the clinical teams.1 While a screening program for cognitive impairment is recommended by the investigators to help identify suspected cases, Hong Kong thus far has no such kind of services that constitutes a worrisome situation.1 Yet, if security measures are not taken while the person is still mentally healthy, huge challenges such as daily inconvenience, domestic conflicts and financial problems, etc., to both the MIPs themselves and their family members may emerge once the person eventually loses his/her mental capacity.

 

Local case sharing

The consequences of failing to make decisions as a result of mental incapacity can be complicated and extensive, as illustrated by the following cases.

Case 1

Mr. Chan is an 84-year-old gentleman residing with his elderly wife. He has three adult children, who are all married and living apart. He had not signed any AD in relation to medical treatment when he was mentally sound. Recently, he was diagnosed with terminal cancer and was hospitalized for fever and acute confusion. Further investigation revealed that he was suffering from multi-organ failure due to septicemia.

Due to Mr. Chan’s mentally incapacitated state, the case doctor discussed with his family members to confirm if any invasive procedures, including the use of ventilator, pacemakers, blood transfusion, and cardiopulmonary resuscitation, etc., should be performed. His family members have conflicting views on this issue. Where his wife and one of his children wanted to extend his life, whereas the other two children just hoped that their father can pass away without further suffering. Sadly, without a unanimous decision between his family members and a lack of an authorized decision maker, no clear direction for subsequent actions can be made for Mr. Chan.

Case 2

Mr. Wong is a 55-year-old merchant. He is married with 2 children who are studying in college and high school, respectively. He and his wife jointly own a company and 2 landed properties (one is selfoccupied) and have a few million dollars in their joint bank account which requires two-signature authentication. Apart from hypertension, Mr. Wong is generally healthy and neither smokes nor drinks. He is also covered by critical illness and medical insurance.

Mr. Wong collapsed and lost consciousness at home one night and was sent to the hospital immediately. He was diagnosed with hemorrhagic stroke and had gone through the critical period in the intensive care unit. After receiving 6-week in-patient rehabilitation treatment, Mr. Wong remained paralyzed on his right side and his language ability was grossly damaged. He became dependent on his family members in his basic daily living activities including eating, bathing, getting dressed, and toileting, etc.

Since Mr. Wong could not sign any insurance/legal documents and he had not created EPA before his stroke, no one could administer or manage his assets and property for the time being. As a result, Mr. Wong was unable to mobilize his finance to support his own medical fees as well as the education and living expenses for his family members.

Similar scenarios have been observed in other local MIP related cases where no resolution was reached. From clinical experience, existing clinical services are too disease-oriented and specialized towards healthcare professionals, and there is a general lack of all-rounded support from social workers and lawyers who are equally important in aiding the mentally incapacitated. For example, in the shared cases, a lawyer could help the MIP to apply for Part II of the Medical Health Ordinance (MHO) at the High Court to certify their state of mental incapacity and enable a committee to be appointed to manage their financial decisions.4 Similarly, a social worker can help apply guardianship orders to make healthcare decisions under the MHO to ensure that the patients’ interests/welfare are protected.5

 

 

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MIP Care Resource Connect: A charity for the mentally incapacitated

Founded in 2019 by a group of diversified professionals encompassing medical experts, lawyers, bankers, educators, and patient carers, the MIP Care Resource Connect (MIPCRC) is a charitable organization that aims to deliver relevant knowledge and resources via a web-based

 

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