Can agreeing about almost everything, still mean you deeply disagree ?
The answer is clearly yes: I know this, because I find that I agree with many doctors about 'what the Mental Capacity Act says', and yet we are still fundamentally at odds because of the importance of the bits we disagree about.
I was prompted to write this piece, as an off-shoot of an e-mail discussion I am having with Dr David Oliver. The e-mail discussion is a continuation of a long-running one, but the fact that it is happening at this moment, sprang out of a series of rapid responses (comments) to an article David Oliver wrote on BMJ. The series of responses is at:
http://www.bmj.com/content/354/bmj.i4214/rapid-responses
If you start with the oldest of the responses, the first 3 were by Susanne Stevens and me, but then the fourth response was by Dr David Jolley, who seemed to strongly object to something David Oliver had written. There followed an exchange of responses between Drs Jolley and Oliver, which somewhat 'mystified' most readers: we couldn't see exactly what it was, they supposedly disagreed about. Dr Jolley seems to understand where he disagrees with Dr Oliver, but I can't see where they differ. I commented on the oddness of that, within the series of responses.
I think that David Oliver and I, in our discussions of the MCA, have got the same thing going on: I am still not 100% certain of precisely where David and I disagree, but I definitely know where I disagree with 'what most clinicians write about the MCA'. And it does seem to me, that David shares the views which I fundamentally find unacceptable - although I could be wrong.
It hinges on my concentration on end-of-life patients who are in their own homes - and the crux of my position, can be found in my latest response in that series, at:
http://www.bmj.com/content/354/bmj.i4214/rr-12
I invariably see almost all doctors and nurses, when they write about the Mental Capacity Act, using words such as advocates/advocacy and representatives/representing, but I CANNOT FIND those words inside the MCA (apart from in connection with IMCAs - and it strikes me that if people would do what section 4 says, IMCAs would be unnecessary). I write about the MCA using words which I think the Act is describing: legal duties and legal powers, patient autonomy, information and understanding.
I do not see family and friends as 'advocating for the patient' - I see family and friends as providing information relevant to best-interests decision-making, and IF THEY UNDERSTAND ENOUGH also arriving at best-interests decisions. I do not see a 'check list' which a best-interests decision-maker has to run through and complete, which is what professionals typically write - I see a set of principles which any best-interests decision-maker is required to follow. Professionals seem determined to 'convert' the duty to comply with the MCA, into 'procedures and data bases' - I see those things as often too slow and unresponsive, and I stress that the integrity of the group most closely supporting the patient in an ongoing way is the important thing. I keep seeing 'guidance' which apparently wants senior clinicians to 'authenticate' decisions which are for the patient to make and express - my position is that it should matter to whom the patient expresses such a decision, and that it is not the role of any clinician to 'authenticate' decisions made by mentally-capable patients.
I see a FUNDAMENTAL SIGNIFICANCE in the answer to the question of 'who was actually there, and could LISTEN TO the patient' - I am DEEPLY ANGRY that most clinical writing, and protocol, IMPLIES THAT FAMILY CARERS ARE UNABLE TO LISTEN !
Any views on this would be much appreciated - I intend to point at this piece on the Dignity in Action Facebook page, and on my own EoL Facebook page.
Hi, just a couple of points from me, although the best interest checklist may not be written into the MCA it does provide a useful guidance to help people carry out best interest decisions in a more methodical way. The checklist also allows care staff to challenge some of the methods of clinicians by pointing out such things as although they may be the decision maker they should still consult family and care staff or that the decision should be delayed until a better time for the patient. We regularly see professionals come into the care home, try to have a discussion with a resident and leave saying they do not have capacity without having even followed the principles of the MCA, Staff are now becoming more confident in asking clinicians for their decision making process and if the principles of the MCA are being followed and if any decision made has been made following the best interest decision guidelines. This role of care staff is in my opinion due to the MCA being interpreted into a set of guidelines
The other point is having decisions authenticated by clinicians which we do in our care setting for decisions on medical issues. We are residential care staff and if someone tells us they have had enough active treatment or would not want to go to hospital ever again we document what they say and offer a discussion with the GP who gives further information to the resident to ensure they are making an informed choice and not an emotional or knee jerk reaction to their present situation.
I do think the use of the MCA in care homes is improving rapidly in the last year or two and I think a lot of this is due to the improved inspections from cqc and the widespread training in end of life care for care homes.
Hi Heather, I'm impressed that you found this one to comment on, because I think it was well down the forum's list.
I'm pleased that you think the CQC's inspections of care homes are leading to improvements - my 'looking from the outside' impression is that the CQC is now doing a good job.
There is a role for 'check lists' within the behaviour and training of paid staff, but my issues are with the different mindsets you can have for end-of-life in the patient's own home, if the nurses, doctors, social care staff, etc, are applying 'check list and protocol' when family carers are applying different principles/instincts. And provided that the family are following the 'we should be doing what my dad would have wanted' principle, then they are in my view following the main thrust of the MCA (I'm excluding long-term dementia here - but the MCA is horribly complex, for long-term mental-incapacity).
I'm pleased with your 'Staff are now becoming more confident in asking clinicians for their decision making process and if the principles of the MCA are being followed and if any decision made has been made following the best interest decision guidelines'.
As for:
'We are residential care staff and if someone tells us they have had enough active treatment or would not want to go to hospital ever again we document what they say and offer a discussion with the GP who gives further information to the resident to ensure they are making an informed choice and not an emotional or knee jerk reaction to their present situation.'
I am engaged in a long-running debate about parts of that: in my view, and I admit there is some subtlety and some complexity with wording in this, it simply goes 'is the person mentally-capable ? - if so, they make their own decision'. So I'm not persuaded that being 'emotional' is sufficient to remove capacity - and 'a knee jerk reaction to your present situation' is also in my view dubious, because you are definitely allowed to make your decisions taking into account your present situation [and your opinion about your likely future situation] and quite what is, and what isn't, a 'knee jerk decision' is tricky. Even if we think that knee jerk decisions are not allowed (and I think they probably are allowed - they might be 'unwise' but that isn't enough to prove incapacity: this is tangled up with my dispute about whether 'soft paternalism' is compatible with the MCA).
I would ask this: if someone alternates between 'very bad days' and 'rather better days', which [if either] is 'knee jerk' - forbidding a life-sustaining intervention on a bad day, or accepting that intervention on a good day ?
Hi Mike, this discussion was highlighted in the latest Dignity in care email which is why I responded now.
The biggest issue is communication and trying to ensure the person's wishes have been understood clearly. Involving the GP is not preventing the person with capacity making the decision it helps them understand the implications of their decision. A resident was adamant they did not want to be admitted to hospital ever again, following a poor experience,however after discussion with the GP they accepted that some emergencies such as a broken hip would need a hospital admission, what they were actually wanting was an end to admissions for investigation or non essential treatment and giving them more information and also respecting their right to refuse treatment led to a plan of care that the resident was happy with. Also as long as the person retained their capacity they could still change their decision at any time.
I am not suggesting emotional or knee jerk decisions suggest lack of capacity but that informed choice is fundamental to good decision making so involving a clinician can be good practise. We use ADRT to legally record decisions and we do involve the GP to ensure the person does have capacity and also that the wording of the decision will ensure their decision is clear to all in future if needed.
Again if best interest decisions are being made in peoples homes then following a checklist should ensure the decision maker (nurse/GP/Consultant) consult family and friends and have to document it all clearly and justify the final decision, Perhaps a leaflet for families explaining how the MCA and best interest decision making process works could empower them to challenge clinicians who seem to over ride what they are saying.
There are poor clinicians and many excellent ones, the LCP in my opinion was a good process which was used badly and no individual accountability ever seemed to happen just blame for the LCP and it's similar situation for MCA.