Can other people see what I can see, in these different descriptions of the decision-making authority of welfare attorneys ?

I was 'chastised' recently, for apparently misquoting something written about cardiopulmonary resuscitation. It seems I wrote that 'professionals should 'avoid emphasising' the nature of CPR' but the article had said that 'professionals should "avoid over-emphasising brutality"'.

The issue with any difference above, is not really down to the word 'brutality' which I was probably trying to avoid using: when professionals explain how CPR is performed, they either do it correctly or incorrectly. The test, would be whether after the explanation, if you then saw CPR being performed on one of your loved-ones, would you be surprised by what you were observing, or not.

There is an interesting variation in the words used, within the following. The Mental Capacity Act allows a person to appoint another person to make decisions, if the first person loses mental capacity in the future. The person appointed is called variously a welfare attorney (by me), an attorney under the LPA, 'an LPA', or a 'proxy decision-maker'. That list is not exhaustive. Whatever you call the person, the point is, if you think you might lose your mental capacity for some reason (for example if you have worsening dementia), you can appoint [while you still possess mental capacity] a person of your choice to make decisions about your care/healthcare [after you have lost your mental capacity].

The law itself, the Mental Capacity Act, explains the authority of the welfare attorney in its sections 6(6) and 6(7) - 6(6)(a) is the Act's term for what I am calling a welfare attorney:

6(6) Section 5 does not authorise a person to do an act which conflicts with a decision made, within the scope of his authority and in accordance with this Part, by-
(a) a donee of a lasting power of attorney granted by P, or
(b) a deputy appointed for P by the court.

6(7) But nothing in subsection (6) stops a person-
(a) providing life-sustaining treatment, or
(b) doing any act which he reasonably believes to be necessary to prevent a serious deterioration in P's condition,

while a decision as respects any relevant issue is sought from the court.

The Code of Practice to the MCA, which is an attempt to 'decipher' the Act, has this to say on the matter:

7.29 Attorneys must always follow the Act's principles and make decisions in the donor's best interests. If healthcare staff disagree with the attorney's assessment of best interests, they should discuss the case with other medical experts and/or get a formal second opinion. Then they should discuss the matter further with the attorney. If they cannot settle the disagreement, they can apply to the Court of Protection (see paragraphs 7.45-7.49 below). While the court is coming to a decision, healthcare staff can give life-sustaining treatment to prolong the donor's life or stop their condition getting worse.

I think the Code's description of the Act, is spot-on in 7.29 (which is not always true - sometimes I consider the Code to be dubious in its description of the Act).

A lawyer, Alex Ruck Keene, has recently written a piece at:

http://www.mentalcapacitylawandpolicy.org.uk/respect-a-new-approach-to-advance-care-planning/

He writes the following in the context of a thing called 'ReSPECT', and I think Alex wrote this specifically in response to a criticism I made of ReSPECT on the BMJ. The ReSPECT form contains 'recommendations' for future interventions when the patient is not mentally capable: in my opinion, it would be the welfare attorney's decision as to what those recommendations would be. But Alex writes the following, which - it takes a fair bit of 'deciphering' - disagrees with me, and in my opinion disagrees with sections 6(6) and 6(7):

'It is, however, perhaps worth adding a word about the role of proxy decision-makers in this context.[1] In the development of the recommendations, the views of a proxy decision-maker as to what are in the patient's best interests should, in general, be taken as determinative on this point. The proxy decision-maker would, in other words, stand in the shoes of the patient as regards the formulation of the recommendations. However, there is an exception to this if it is sufficiently clear that that the views that the proxy decision-maker are advancing are not in the best interests of the patient. There is an argument that a decision that a proxy seeks to make which is starkly contrary to any reasonable formulation of the best interests of the patient cannot be said to be a relevant decision for purposes of s.6(6).[2] If so, it would be possible not to take these account in relation to the formulation of the recommendations, especially if the proxy decision-maker has persisted in advancing such views after discussion (including, for instance, involvement of a second opinion). However, I, for one, would expect in such a case that there would be recourse to the Court of Protection so as to ensure that there could be no doubt that any clinician who might in due course either administer or withhold treatment could rely upon the s.5 MCA 2005 defence. I would, though, very much hope that a central outcome of the ReSPECT process being embedded is that such disputes will be vanishingly rare as better conversations take place at an earlier stage.'

There is a BMJ paper promoting ReSPECT, by Pitcher and others, at:

http://www.bmj.com/content/356/bmj.j876

Directly beneath its Box 3 we can read:

'In the UK, the exception to this is if someone has been appointed as legal proxy with powers to make decisions about life sustaining treatment: that person's decisions must be viewed as binding, as long as they clearly serve the patient's best interests.'

The latest version of the 'Joint CPR Guidance' issued by the BMA, RCN and RC(UK) can be found at:

https://www.resus.org.uk/dnacpr/decisions-relating-to-cpr/

On page 20, and taking out some wording which simply confuses this, you can find:

'If the welfare attorney makes that decision, it is a binding decision that clinicians must respect, unless ... the clinician has good reason to believe that the decision made by the welfare attorney was not made on the basis of the patient's best interests'.

Joining these various things together, and putting it clearly:

The Mental Capacity Act and the Code of Practice, say that the welfare attorney's expressed decision must be followed, unless there is an application for a court ruling, in which situation clinicians could attempt CPR even if the attorney objected.

Parts of the Joint CPR Guidance imply that the welfare attorney's decision that CPR should not be attempted, can be ignored without there being an application for a court ruling in progress - as indeed does David Pitcher's paper promoting ReSPECT, and Alex Ruck Keene's article.

Even ignoring this avoidance of that 'while a decision as respects any relevant issue is sought from the court' in section 6(7) of the MCA, we find a variation in wording:

Alex Ruck Keene: '[if] a decision that a proxy seeks to make is starkly contrary to any reasonable formulation of the best interests of the patient'

Joint CPR Guidance: 'unless ... the clinician has good reason to believe that the decision made by the welfare attorney was not made on the basis of the patient's best interests'

The Pitcher BMJ paper: '[the welfare attorney's] decisions must be viewed as binding, as long as they clearly serve the patient's best interests.'

I am aware that this is 'nerdy' and might be rather an effort to follow, so to make it even clearer.

The law seems to allow me to appoint a welfare attorney to make decisions about my healthcare if, in the future, I cannot make those decisions myself. So far as I can see, the law says my attorney's decisions must be followed by doctors, unless they are applying for a court ruling to challenge the decision expressed by my attorney, and if doctors are applying for a court ruling, they can try to keep me alive against my attorney's decision to let me die. Alex Ruck Keene, a barrister, suggests that without applying for a court ruling, the attorney's decision can be ignored if it is 'is starkly contrary to any reasonable formulation of the MCA's best interests requirement' but by the time we get to the Pitcher paper we have 'the attorney's decision must be followed if it clearly serve the patient's best interests'.

Can you see a serious weakening of the welfare attorney's decision-making authority, as you move from the law itself (the MCA) to David Pitcher's paper ?

Because I can !

Post a reply