My differences with clinicians over the Mental Capacity Act hinge on 'who can claim compliance with section 4(9) ?'
I think I have been 'subconsciously pondering' the clearest way to explain exactly where my 'differences' with most clinicians lay, over the past few days. I've probably found the solution. Here goes.
I want less, or no, stress on 'who is a professional and who is a family carer, relative or friend [of the patient]' - 'the system' strongly stresses the distinction between professionals and laymen.
I look at section 4(6) of the Mental Capacity Act, and argue from it that 'whatever 'best interests' means, nobody can properly make a best-interests decision without an understanding of the patient 'as an individual person' [not simply 'as a clinical situation']'.
'The system' likes to identify a best-interests decision-maker in advance of the decision to be made, and I prefer to concentrate on 'the acquisition of the understanding needed to make a best-interests decision by EVERYONE who is 'closely supporting the patient in an ongoing way''. With that understanding, then applied to decision-making at the time the decision becomes necessary.
It has - eventually ! - dawned on me, that the CRUX of this difference, can be explained with reference to a piece I wrote on the BMJ about an article by Dr Chris Danbury. My comment can be found at:
http://www.bmj.com/content/352/bmj.i222/rr-0
Dr Danbury, is pushing for compulsory 'mediation' when clinicians, patients and families disagree about treatment decisions (the situation is horrible, but I don't like the suggestion - I think the MCA is fine as it stands, IF only people would stick to what the MCA actually says). I analysed 'when could mediation apply' in my BMJ piece, which I titled 'Mental Capacity Act: the concepts of consent, representation and mediation disentangled'. And what I argued, was that it hinges on section 4(9) of the MCA - as I pointed out:
'An honest consideration of section 4 of the Act, first requires a person to answer the question 'Am I sufficiently well-informed to properly consider section 4, and thereby to defensibly claim compliance with section 4(9) ?'. If the answer is no, you would not be involved in 'mediation' [about 'what is the best best-interests decision']. If the answer is 'yes', then your own best-interests decision is the one you must follow: that is obvious, from the wording of 4(9).'
So my position is the distinction is NOT between professionals and family carers: the CORRECT DISTINCTION is between people - be they nurses, relatives, doctors or anyone in general - who answer 'yes' to my question, and those who answer 'no' to my question:
''Am I sufficiently well-informed to properly consider section 4, and thereby to defensibly claim compliance with section 4(9) ?'
I will probably use the text of this piece, in a 'worked-up' PDF version of the same argument, and if I create that PDF, I will try and upload it to the Dignity in Action Facebook page.
I put a PDF together about an hour ago, which highlights - and uses recent court cases to point out that I'm not alone in believing this - that 'those people who know the patient as a close friend, can use that 'deeper understanding [than the clinicians possess]' of the patient if they are considering section 4(6) of the Mental Capacity Act.
If you take this to its logical conclusion, that would indeed be 'that setting aside issues around 'panic and emotion, and the like', it is the close family and close friends of a mentally-incapable person, who are best-placed to work out what is in the person's best interests.
I could have attached the PDF to a new piece, or to various of my existing pieces - I've decided to attach it to this one. The PDF is quite short - one landscape page.