Can some Professionals please explain this one to me It confuses me enormously in legal terms

Can some of the folks who are at the professional-end of this one, please explain it to me ?

Why do I keep coming across things, which imply that professionals believe the process of Informed Consent involves 'negotiation' ?

The Informed Consent process, involves the clinicians providing prognoses, then the patient considering the various outcomes, and expressing a decision - the 2010 GMC end-of-life guidance expressed this very clearly, using the words I show further on.

The following, is the sort of thing a hospital doctor involved in care of the elderly might write, or say, during a discussion:

'The kind of area for which I am regularly involved in best interest meetings is around whether an older person who is at risk who is starting to struggle at home despite care services, who has suffered repeat admissions to hospital or falls etc should be allowed to go back home again with more support and allowed to take that risk. In that circumstance involvement of relatives is crucial of course, but it would be very wrong to accept what say a daughter who lived a distance away and was not the main carer said uncritically. Sometimes the professionals have to fight for the older persons right to do what they want.'

Now, I cannot 'get my head around' the legal basis, beneath that sort of 'thinking'.

While mental capacity can vary in the sense that someone might be considered to be mentally capable for some decisions but not for others, for any particular decision, a person either possesses capacity or lacks capacity.

If the older person is at risk of harm, but not mentally incapable, then I have a problem with this one:

'Sometimes the professionals have to fight for the older persons right to do what they want.'

I see this as the clinicians must explain the risks of returning home, but the older person then decides whether to go home - I don't see how that becomes the clinicians', or social workers', decision, at all. Except that people have grown old, how is this any different from not banning, for example, smoking - or climbing Everest, when about 1-in-20 or whatever inevitably die on the mountain ?

I do have an instinctive 'aversion' to anything which seems to be turning a single person's decision, into some sort of weird 'joint decision', unless that cannot be avoided - because it totally messes up 'certainty'.

I know this will be challenging for HCPs, who will almost definitely think that allowing someone to go home and fall again, and be injured the next week perhaps, 'can't be right' - but what happened to section 14(c) of the GMC EoL guidance, which is entirely clear for mentally-capable patients:

Patients who have capacity to decide

14 If a patient has capacity to make a decision for themselves, this is the decision-making model that applies:

(a) The doctor and patient make an assessment of the patient's condition, taking into account the patient's medical history, views, experience and knowledge.

(b) The doctor uses specialist knowledge and experience and clinical judgement, and the patient's views and understanding of their condition, to identify which investigations or treatments are clinically appropriate and likely to result in overall benefit for the patient. The doctor explains the options to the patient, setting out the potential benefits, burdens and risks of each option. The doctor may recommend a particular option which they believe to be best for the patient, but they must not put pressure on the patient to accept their advice.

(c) The patient weighs up the potential benefits, burdens and risks of the various options as well as any non-clinical issues that are relevant to them. The patient decides whether to accept any of the options and, if so, which. They also have the right to accept or refuse an option for a reason that may seem irrational to the doctor or for no reason at all.

(d) If the patient asks for a treatment that the doctor considers would not be clinically appropriate for them, the doctor should discuss the issues with the patient and explore the reasons for their request. If, after discussion, the doctor still considers that the treatment would not be clinically appropriate to the patient, they do not have to provide the treatment. They should explain their reasons to the patient and explain any other options that are available, including the option to seek a second opinion or access legal representation.

How does 'So, I'm going home, and perhaps I will fall over and hurt myself - so, its my decision, not yours' not logically (and UNAVOIDABLY) arise from (c) ?

The only negotiation, at all, in there, is in section (d), which is when the patient requests a treatment the doctor has not offered - so where, legally, does the idea that you can prevent this person from going home (without applying for some sort of court ruling) come from ?

Cheers, Mike