Analysing the legal perspectives on mental capacity in making medical decisions in Malaysia / Inah Ja Abd. Jalil

In medical ethics and law, it is highly recognized that the principle of respect for autonomy plays an integral role in decision-making. The respect, however, is not absolute and the most common explanation that the respect has been held inapplicable is due to patients’ lack of mental capacity to make decisions. Assessing patients’ mental capacity is an important part of a doctor’s profession. The assessment can be taxing as it requires an intricate balance between respect for patients’ autonomy and protection to patients who lack mental capacity to make autonomous decisions. These patients are often assumed as incapable of making decisions despite not being properly assessed. However, most of these patients who are assumed to have lacked the mental capacity are actually capable of making medical decisions. This could possibly be because of the fact that there is no mental capacity law to enforce the mental capacity assessment in decision-making. Although there is a lack of reported issues or decided cases pertaining to mental capacity in making medical decisions in Malaysia, such issues have been reported in other developed countries. The UK has legalised the concept of mental capacity through the Mental Capacity Act (MCA) 2005, which could be adopted by Malaysia as well. For this reason, this study analyses the legal perspective on mental capacity in making medical decisions in Malaysia. This study highlights the inadequacies of the existing Mental Health Act (MHA) 2001 of Malaysia and other relevant laws, regulations and policies governing medical decision-making for patients who lack mental capacity. The analysis is based on four key aspects which are (1) assessment of mental capacity, (2) consent for treatment, (3) substitute decisionmaking, (4) advance medical decisions. As a result, the MHA appear inadequate in protecting the rights of patients who lack mental capacity to make medical decisions. Finally, this study shows that it is imperative to establish legal standards of mental capacity to guide the decision-making process and to protect the rights of patients who lack mental capacity to make medical decisions.