Mike's Cheeky Blog: along came a spider, who wove a tangled web
In this contribution to my seemingly never-ending analyses of the Mental Capacity Act, I intend to point at some 'tangled thinking': we need more spiders whose webs are not tangled up.
Over the last year or thereabouts, a few things have happened which could lead to a more orderly web, with luck.
The 'Montgomery' court ruling, has driven home to most of our doctors that our law for consent from mentally-capable patients is genuine Informed Consent - the process of obtaining consent, is correctly described as Supported Decision-Making. Some recent guidance from the Royal College of Surgeons (England) used the term supported decision-making, and did not use the frequently-encountered term 'shared decision-making'. Many authors still write about 'shared decision-making', but the term 'is deeply 'tangled'' and should be dropped: we need to be using supported decision-making, and describing THE PROCESS of satisfactory decision-making both when patients are mentally capable, and also when patients are mentally incapable.
There is a current Care Quality Commission consultation, and in the main consultation document this sentence appears: 'The legal authority for intervening in someone's life in a health or care setting is consent, or if the person lacks the mental capacity to make the relevant decision, a best interests decision.' The CQC is spot-on - the MCA, if we set aside Deprivation of Liberty, can in essence be described as a law about either consent (if the person is capacitous) or THE REPLACEMENT FOR CONSENT, which is 'best-interests decision-making', if the person is incapacitous. The MCA is clearly a source of much confusion and misunderstanding: many people are still using 'tangled sentences' to describe some fundamental issues, and one such sentence which we should definitely stop using is 'mentally-capable patients make decisions in their own best interests'. The problem, is that this conflates consent from capacitous patients, with best-interests decision-making during incapacity, AND THE TWO CONCEPTS ARE QUITE DIFFERENT.
Mr Justice Charles, in his recent Briggs ruling, stresses that the MCA's best-interests process is not 'substituted decision-making' - for example, he includes in his ruling: 'This is, as the Explanatory Notes to the Bill made clear, still a "best interests" rather than a "substituted judgement" test, but one which accepts that the preferences of the person concerned are an important component in deciding where his best interests lie.'. However, there is no question that the MCA does require that someone other than the patient makes the decision if the patient is mentally-incapable - and inside the recent Law Commission consultation about DoLS/MCA, we were told that some human rights lawyers argue that 'Supported decision-making is a process of providing support to people whose decision-making ability is impaired to enable them to make their own decisions, whereas substituted decision-making involves someone making decisions on behalf of someone else on the basis of some objective standard such as best interests. If the Committee is correct, then the Mental Capacity Act clearly falls short: it provides for a substituted decision-making regime where decisions are made on behalf of the person in their best interests (for instance, by a court appointed deputy).'.
This is 'almost contradictory' - what is clearly true, and what Mr Justice Charles also pointed at in his ruling, that 'Beyond this emphasis on the need to see the patient as an individual, with his own values, likes and dislikes, and consider his interests in a holistic way, the Act gives no further guidance [about HOW TO MAKE a best-interests decision].'.
One reason the 'web people weave from the MCA' is often tangled, is that they tend to go beyond what the Act actually tells us: for example they write that the MCA is about care and safeguarding of mentally-incapable people, when in fact the Act is about decision-making when people are mentally incapable, and 'care and safeguarding' is not necessarily the main ethos of the Act (its main ethos seems to be of respect for the individuality of people). It is interesting, that Mr Justice Charles, arrived at a justification for the best-interests decision he made, which is apparently identical to a justification which I had already suggested:
http://www.bmj.com/content/355/bmj.i6829/rr
There are other regions of 'deeply tangled web' such as conflation between patient autonomy and best-interests decision-making [conflation between Advance Decisions and 'advance statements' for example], an avoidance of the fact that section 4(9) is a description of a legal duty, and that only section 6(6) seems to impart legal powers over best-interests decision-making, and some avoidance of the word 'while' in section 6(7) of the MCA.
We need to sort this tangled web out, if we are to make progress with correct implementation of the MCA. We need to be both correct and also clear about certain things - for example, not all legitimate decisions made when people are mentally-incapable are best-interests decisions (best-interests is a concept which replaces consent, as the CQC has pointed out - so, anything which was 'not a consent decision during capacity' is not a best-interests decision during incapacity [the obvious one, is the non-provision of a treatment which would not be clinically effective]) - and to dig more deeply into some aspects of the Act (notably, into 'why a written Advance Decision is legally-binding, and with whom the risk of following an Advance Decision rests').
And, we need 'more bravery from the professionals' - instead of waiting for possibly never-appearing court rulings to clarify some issues (court rulings are 'narrow' - they are unlikely to explain the MCA as a whole, which is the understanding we need to thrash out) , we need the professionals to engage in open debate about things such as my analyses at: