Determining Mental Capacity and Identifying Surrogates: The Need for Clearer Guidance on Medical Decision-Making in Malaysia

The dilemmas and uncertainties related to determining mental capacity and surrogate decision-making are universally recognised as one of the most important concepts in the field of clinical ethics. In Malaysia, healthcare practitioners often find both determining decision-making capacity of patients, and identifying surrogate decision makers for incapacitated patients confusing. This paper explores the concepts of decision-making capacity and surrogate decision-making, identifying key components and associated principles such as substituted judgement and best interests. It reviews current provisions and guidances available in Malaysia that are related to these issues, including the Power of Attorney Act 1949 (revised 1990), Mental Health Act 2001, and various guidelines. It then highlights the challenges encountered in the local clinical setting due to the lack of specific legislation and clear guidance. Finally, this paper provides recommendations for improvements to address these issues in order to safeguard both the clinical practice of healthcare professionals and the rights of patients. These recommendations include the establishment of a regulatory framework with four main domains: clear and objective criteria for mental capacity assessment, provisions for advance decision-making while patients still possess mental capacity, a ladder or hierarchy of surrogate decision-makers, and provisions for appropriate surrogate decision-making standards, as well as the need for advocacy and awareness education among both the general public and healthcare professionals.