Welfare Attorneys are appointed to MAKE decisions - they are not appointed to be consulted by clinicians (as, unfortunately, many clinicians still seem to think is the case)

I am still deeply disturbed, that for reasons I find 'somewhat mysterious', many [or even most] doctors apparently cannot read the Mental Capacity Act. This is puzzling: doctors are clever.

I have been looking through the PDFs of various presentations from a recent King's Fund end-of-life one-day conference, and I asked the author of one of these PDFs a question. It isn't a complicated question:

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I would be interested to know, whether your own hospital's DNACPR Forms satisfy my test where a decision is made on best-interests grounds, and when there is a welfare attorney whose decision-making authority extends over life-sustaining treatment. The 'test' is stated in the question I used when I sent my survey out (this refers to a survey of hospitals about their DNACPR Forms):

'So my question, is does your hospital's DNACPR Form, make it clear that if a best interests DNACPR decision was made by a suitably-empowered welfare attorney, that the decision is not somehow 'authorised' by your clinicians ?'

Or:

'However, I have not yet seen a DNACPR Form, which EXPLICITLY provides for the signature of a welfare attorney as the justification for a best interests DNACPR decision INSTEAD OF the signature of the 'senior clinician'.'

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The reply, is typical of what doctors write when I ask them that question:

In regards to your comments about DNACPR, the form used in our trust has a section to identify those individuals involved in the discussion and which includes whether or not an LPA has been consulted as part of this process. In regard to the decision itself, it is actually a medical decision - patients have the right to refuse treatments but they cannot demand them and doctors are under no obligation to offer treatments they deem to be futile. Obviously we have a legal and moral duty to inform patients, and where they give consent, their relatives. If a patient does not have capacity then a best interests decision is made, in line with the MCA. If the patient has an LPA then they would be a key member of this decision making process but as far as I am aware their opinion does not override the consultant or GP in charge of that patients care. Where there is conflict, in my experience, it is about sensitive and realistic discussion with those involved and then offering a second opinion if agreement cannot be reached.

The problem, is that this is WRONG! Legally incorrect.

Working through the above, in an order that makes my point coherently:

1) 'patients have the right to refuse treatments but they cannot demand them and doctors are under no obligation to offer treatments they deem to be futile'

Patients - and welfare attorneys - do not have a right to demand treatments which would be clinically ineffective (the word 'futile' is one I wish to avoid - 'clinically unsuccessful' is better), nor can NHS patients demand a treatment which would be so expensive that it is unreasonable in the interests of all, to offer it to a specific patient. But, if a treatment is potentially life-sustaining, section 4(5) of the MCA has to be considered:

4(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

As for refusals of treatment: yes, the fundamental principle on which the MCA is founded, is that mentally-capable patients have the right to forbid any intervention. And also a right to project this refusal of intervention forwards into future periods of mental incapacity which the patient has anticipated.

2) 'In regard to the decision itself, it is actually a medical decision'

Well, no: there can be a justification for DNACPR based on an expert prediction that CPR would not be successful in re-starting the heart for a clinical reason (and that is not a decision - it is an opinion).

There can be an understood refusal of the intervention from the patient.

Or, there might be a decision made in advance of a possible cardiopulmonary arrest, when the patient is not mentally capable and when CPR might be 'clinically successful' (when CPR might re-start the heart) - this one is a 'best-interests decision'. And welfare attorneys are appointed to MAKE that type of best-interests decision: best-interests decisions OF ANY TYPE, including about CPR, are NOT 'medical decisions'. And, if the attorney has authority over the decision (here over CPR) then it is the attorney who does the consulting: it is the attorney who needs to comply with section 4 of the MCA, and it follows that the attorney would consult the clinicians if this were necessary.

I explained this, in my write-up of that survey of hospitals about their DNACPR Forms:

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It seems to me, that there is a significant difference between the way I look at the Mental Capacity Act, and the [apparent] way that many clinicians look at it. In essence, to me the Act is about the definition of, and duties and powers of, decision-makers, and about the principles these decision-makers must follow: it is clear that the Act is not describing clinical things, such as the best way to apply a treatment, or how best to arrive at a prognosis - the Act is about a wider, less well-defined and much more complex, question of should
an intervention take place at all. I also see what I consider to be a lack of terminological clarity, around the phrase 'best interests': I reserve 'best interests' for decisions which involve the decision-maker being able to claim to have legitimately complied with section 4(9) of the MCA - effectively, this places the non-offer of a medical intervention because it could not be clinically successful, and any decision made by a person who does not understand at least a substantial portion of the things described in section 4 of the MCA, as 'not best interests decisions' (although, that does not automatically equate to not legitimate decisions).

By contrast, many clinical authors devote much more time to descriptions of the clinical situations in which decisions are made, with much less discussion of the origin of the 'legal authority or legal justification' of the person making a decision.

Very bluntly, and somewhat over-simplified, I analyse the 'rules' by defining the decision-making process and this leads to less involvement of precise clinical situations in my analyses: most clinical authors are much more precise in their categorisations of clinical situations, but then they tend to make unproven assertions about who can legitimately be a decision-maker.

In its most concise form, this difference comes down to sentences which I often see, such as 'ultimately DNACPR is a clinical decision': unless 'a clinical decision' need not be a decision which requires a clinician to make it, that sentence is clearly wrong, because of sections 6(6) and 6(7) of the MCA, taken in logical combination with the absence of any requirement that welfare attorneys and court deputies need to be clinically qualified.

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The same line of argument, makes it clear that this is also legally incorrect:

'If the patient has an LPA (note: LPA means welfare attorney here) then they would be a key member of this decision making process but as far as I am aware their opinion does not override the consultant or GP in charge of that patients care'

Although it is somewhat challenging to properly deconstruct that sentence - it is easiest to take a look at the DNACPR Justification Hierarchy which I included in the file you can download from my piece at:

http://www.dignityincare.org.uk/Discuss_and_debate/Discussion_forum/?obj=viewThread&threadID=741&forumID=45

3) 'the form used in our trust has a section to identify those individuals involved in the discussion' - that is sensible, and I 100% approve of it. I would also point out, that it is logically possible to arrive at an agreed best-interests decision, WITHOUT identifying an individual who 'made the decision' - provided everyone is in agreement. I explained that, in the file I mentioned earlier which can be downloaded from the link I've just provided. I also explained my interpretation of the law if there is disagreement in that PDF file.

4) We are now moving to quite complex 'MCA-related issues' - far more complex than the failure to grasp that welfare attorneys make the best-interests decisions - with:

'Where there is conflict, in my experience, it is about sensitive and realistic discussion with those involved and then offering a second opinion if agreement cannot be reached'.

Some of those issues, are discussed in a series of BMJ rapid responses at:

http://www.bmj.com/content/352/bmj.i1494/rapid-responses

But it is REMARKABLE that doctors who write about the parts of the MCA which are less than clear, and about the things 'which the MCA does not directly cover', fail to grasp that patients get people appointed as welfare attorneys so that the attorneys can make any necessary best-interests decisions, and that this role is court-authorised, and very clearly explained in the MCA.

It is also DEEPLY WORRYING that so many doctors seem unable to comprehend even the clearer parts of the Mental Capacity Act, a decade after the MCA became law.

I'm not sanguine about the use of the word 'futile' in connection with clinical prognosis - I prefer a simple description of the prognosis in clear clinical terms (I suspect that there can be conflation between the clinical outcome, and the acceptability of the clinical outcome, when the word 'futile' is used).

I intend to add a further piece to this one, listing some more areas where what many clinicians seem to think the MCA says, and what I believe it says, are different.

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