I have just watched an excellent video about the Mental Capacity Act
I received an SCIE newsletter yesterday, and it pointed at a video about the MCA - the link is:
http://www.scie.org.uk/mca/introduction/using-mental-capacity-act
and the video is titled 'Using the Mental Capacity Act'.
I HIGHLY RECOMMEND this video - I don't seek out this type of thing, but I do 'stumble across them', and THIS ONE IS REALLY GOOD.
I do - as is usual for me - have a few comments.
The section of the video where people are talking about Advance Decisions, 'sort of implies' that 'best interests' is somehow connected to Advance Decisions: best interests has got nothing a tall to do with ADRTs, and that could be misunderstood by someone watching the video.
It also doesn't deal with this - and I think we DO NEED TO DEAL WITH this. Extracted from Poser no 11 in my series at:
XXXXXXXXXXXXXXXXXXXX
Should decisions be made by whomever is logically the best-qualified to make the decision, when several potential decision-makers are present at the same time ?
The legal defence of 'necessity' is based on 'justifiable ignorance'.
The legal protection the MCA offers to a decision-maker, is based on the application of an 'adequate understanding of the situation' and the ACQUISITION OF THAT UNDERSTANDING is an 'implied duty' within the Act.
If an unconscious patient arrives at A&E unaccompanied, necessity has to apply.
If an unconscious patient arrives at A&E accompanied by a family carer, the question is does the family carer's understanding of the situation make an application of 'necessity' inappropriate ?
If a patient who is on some sort of 'EoL register' collapses at home, and a family carer calls 999 to be more certain of the medical situation, isn't the family carer's decision about what should happen next (a decision, which the carer MUST defend in terms of the MCA's test - as a long-term carer for the patient, a failure to satisfy 4(9) of the Act 'would be negligence') logically 'better' than any decision made by a 999 paramedic which would be defended by 'necessity' ?
PUT SIMPLY, isn't a decision made by the person who understands the situation best (there, the family carer) the best decision available ?
XXXXXXXXXXXXXXXXXXXXXXXXX
We also need to 'deal with' something else - something 'very problematic for' the professionals, but I feel certain legally correct nevertheless. You can find my piece about it at:
The title of my piece, 'gives the game away': 'My reasons are my own - it is entirely up to me, whether or not I decide to share them'.
Modifying a little what I wrote in that piece, this is the thing I'm sure I'm legally correct about, but which professionals find 'impossible to work with':
But there is nothing in the MCA's description of the decision-making of a mentally-capable patient - which you can call Patient Autonomy, Informed Consent or Considered Refusal - which inherently requires the patient to explain why he decided as he did: this framework, only requires that the patient expresses his decision clearly.
The paradox is clear: before a person loses mental capacity, the person is under no obligation to 'explain my individuality - to explain 'how I think'' - but, as soon as the person loses mental capacity, 'understanding how the person thought while mentally-capable' is a FUNDAMENTAL requirement of best-interests decision-making.
Which is why I like Advance Decisions and I dislike 'advance statements', as I explained at:
I have a closing aside: about 7 minutes into the video, someone called Michael, who appears to state that he and his wife both have 'learning difficulties', appears to speak with more competence and lucidity about the MCA, than quite few medical doctors I've debated MCA-related issues with - whatever Michael's learning difficulties are, they were not obvious to me !
Typo - it should have course have said 'best interests has got nothing at all to do with ADRTs'.
There is something else, which I feel the urge to 'get down in writing' (amazingly, there are still a few things about the MCA, which I have not yet written about - however difficult that is to believe) at some point.
I won't write the piece here, but I'll explain 'the thrust of it'.
Because Welfare Attorneys can be legally-empowered to control best-interests decisions, it would make no sense for welfare attorneys to not also be assumed capable of properly understanding the requirements of best-interests decision-making. Most attorneys will be normal, 'man off the street' (or woman off the street) people, not clinically trained, not legally trained: this IMPLIES 'that it should be possible to describe the MCA in terms of everyday language'.
I keep trying - which is more than some authors do - to do that, and I fear failing: but the video is doing precisely that. The video avoids legal jargon, and tries to get across the MCA using normal, conversational, language.
And - this is also hard to believe - although the MCA itself (the Act) is a much shorter (not to mention in my opinion clearer) read than the MCA's Code of Practice, there are parts of the MCA which are essentially redundant or unnecessary. However, I'm using 'unnecessary' with the implication of 'IF PEOPLE THINK', which might be an assumption too far.
For example: it should not be necessary for the MCA - a law - to tell us that a person's decision-making capacity can vary from day to day - we should know that 'is true from real-world observation'.
And other things in the MCA, 'are almost logical requirements'. As an example, the only really clear part of the MCA, is its statement that mentally-capable people make their own decisions. Having stated that, it further empowers people to try and project their decision-making 'autonomy' into anticipated mental incapacity, with its provision for Advance Decisions or control of future decision-maker via an Attorney chosen by the person who might lose capacity.
So, when you put those things 'all together', it would seem truly strange if 'making the least-restrictive best-interests decision' did not flow logically from the other parts of the Act: in particular, the idea that if a decision isn't urgent and the person lacks capacity at the moment, and it could be delayed for a day or a week, and if the person might possess capacity at some time during that period of putting off decision-making, that the decision SHOULD BE DELAYED SO THAT THE PERSON MIGHT MAKE IT, seems 'obvious'.
I think, that when I write the piece, I'll be using the 'it would make no sense, if the Act said something else instead' line of argument.
I've been putting off writing this piece for a couple of years at least, because I know how hard it will be to actually write it: it is basically a claim that 'you can construct most of the MCA's detail, from just a small core of its fundamental principles, and there is only one [or a very few] way you can construct the Act from that handful of fundamental principles - rather like the way that a lot 'has to be true about' an extinct animal, even if you only have part of its skeleton, because 'the bits you have would only make any sense, if the missing bits had certain properties'.
The core principles - the bones you should be able to deduce the rest of the Act from - are:
1) People are assumed to be mentally capable unless proven otherwise, and 'Informed Consent' is the rule when people are mentally capable
2) The autonomy of 1 can be projected forwards into anticipated future mental incapacity
3) An ill-defined concept of 'making decisions in the person's best interests' is the legal situation if neither 1 nor 2 applies
4) The only really clear thing we know about 'best-interests decision-making' is that 'it fundamentally involves 'the patient's MENTAL individuality' (beliefs, attitudes, 'way of living' etc)'
5) The MCA supports 'patient self-interest' and is not concerned with 'societal good'
The 'rest of the skeleton' - and, indeed, some things which are part of entirely different creatures (see 5) - should flow from those (note - I've been putting this together as I type it - so that 1-5 list might not be perfect).