Paramedics and relatives, the MCA and CPR

I have been discussing the Mental Capacity Act (MCA) and its concept of Best Interests for about a decade: it still seems to be the same discussion, although more people are now aware of the MCA. Someone sent me this in an e-mail recently:

'I wonder if you’d accept that the person making the decision is a key factor, in that if a relative or stranger uses or fails to use a defibrillator in the street they are certainly understood or even praised, and never risk retribution, whereas the ambulance person is expected to make decisions in a defensible way in a situation that is sometimes clear-cut but often confused and highly emotional? More is expected of the barrister who’s ‘got his papers’ than of the bloke in the pub or similar who holds forth on legal subjects?'

It is certainly true that professionals are judged by higher standards than relatives and family-carers: I recently pointed out in an e-mail that a relative could perform CPR (cardiopulmonary resuscitation) so badly that the CPR itself killed the patient, and would probably not be blamed at all - but a paramedic who did that, might even end up in jail. And clinicians are expected to know of the MCA - lay people usually are not. I think, however, that some lay people - for example the family-carers of a person who is living with severe dementia - could reasonably be expected to know about the MCA.

Even some professionals are 'excused ignorance' of the MCA. The MCA in effect provides a legal defence against intervention-without-consent, if section 4 is complied with: and the defence prima facie cannot be claimed by a person who is unaware of section 4 of the MCA. Discussing that, a lawyer pointed to a court case when (from memory) two police officers had intervened to prevent someone from drowning. Subsequently it was claimed that the police officers had committed an assault, because by their own admission they knew nothing of the MCA. The court found in their favour, and I think the reasoning amounted to 'they could not have been expected to apply MCA section 4 (in practice that equates to the police officers could not be expected to have an understanding of the factors in MCA 4(6) for the person who was drowning) and even if aware of the MCA their actions (saving the life of the drowning person) would have been the same'.

End-of-Life (EoL) at home, can be very confused and confusing for many reasons: notably issues around communication, and 'sudden [unanticipated] events'. Those factors make it clear that what the NHS likes to imply 'is the solution', ACP (Advance Care Planning), is helpful and 'sometimes works' - but that in many situations ACP cannot work.

In fact, I recently contributed to a paper which discussed a scenario when ACP could not be the solution, because it would be unreasonable to expect ACP to be in place:

https://jme.bmj.com/content/early/2020/12/02/medethics-2020-106490

https://www.dignityincare.org.uk/Discuss-and-debate/Dignity-Champions-forum/The-story-of-an-Article/1093/

The relative - the patient's wife - in our paper is not aware of the MCA. But, it is possible to have a similar scenario where the family-carer is aware of the MCA. Then the questions change: it is no longer 'are the relatives forgiven for not understanding the MCA' and it becomes 'if the relative claims to be aware of the MCA, and claims to have complied with section 4(9), is the relative able to claim the legal protections of the MCA in an identical way that professionals can?'. So far as I can see - and the lawyer I was discussing this with agrees with me - the answer is 'yes - a normal family-carer can claim the protections offered by the MCA'.

I wanted to be clear on that - so I was explicit in my e-mails with the lawyer (we were also discussing a very 'legally nerdy' and little-known issue around the meaning of 'decision' in an MCA context - which can be ignored here):

I sent to the lawyer:

'In reality, I am not very bothered about how judges view the Act. My main issue, is an acceptance that family carers who claim to have complied with 4(9) can then claim identical s5 legal protections as a clinician who claims to have complied with 4(9). Even with your weird distinctions around 'decisions', that seems to still be true for me, because you only have attorney/deputy/court in one group, so everyone else seems to be in the same (different) group.'

The lawyer sent back (as part of a wider reply):

'Yes, family members can certainly claim to be able to benefit from the s.5 defence (with s.4(9) as the underpinning) if they have carried out an act in connection with care or treatment in relation to the person ...'

The lawyer continued, with what I have already pointed out above (the clinician has to be aware of and then apply the MCA - but relatives are not expected to be aware of the MCA in many situations).

In practice (even if this is less obvious from the wording of sections 4 and 5) the MCA provides a legal defence (perhaps we could instead write 'a legal justification') for both action and inaction: compliance with section 4 provides legal protection for both the attempting of, and the witholding of, a treatment.

It is not entirely obvious, 'what the precise question to be answered is' when forming a best-interests decision - unless the intervention is potentially life-sustaining. For life-sustaining treatments, Mr Justice Charles (in the Briggs ruling, which was about CANH withdrawal) has clearly explained what the question is. At least, if the patient, to use my phrase here, goes very quickly from capacitous to essentially unconscious. For CPR (so we are assuming it is the arrest itself which removes the patient's mental capacity) the question and answer (I am using the term 'understands' here: exactly how certain that understanding must be, is a tricky aspect which I will not discuss here but I have discussed that in an earlier piece) are:

'If we understand the decision the patient would have made about CPR then we must attempt or withhold CPR as the patient would have decided [in this particular situation], and if we do not understand what the patient would have decided then we must attempt CPR [to try and preserve life].'

I wrote 'we' although in reality the MCA says 'I' - section 4 of the MCA is framed in terms of an individual making a best-interests decision.

In the recent paper I contributed to, I wrote in my section of the paper:

'From my family carer perspective, this situation has to change. And, the direction of change must be one which improves the support given to patients, by promoting integration between everyone, lay and professional, involved in supporting patients. This ‘model’ requires ‘us and us’ as opposed to ‘us and them’: it emphasises teamwork between family carers and the clinicians who are in regular and ongoing contact with the patient, and it replaces ‘multidisciplinary team thinking’, with genuine professional-lay integration.

Anyone can listen to a patient—provided you are present to listen: if only a relative is present, only the relative can listen. Often it will require a clinician, such as a 999 paramedic, to confirm that a patient is in cardiopulmonary arrest, but the family carer who called 999, is the person most likely to know if the patient would have wanted CPR. Put simply, the clinicians are the experts in the clinical aspects, and the family and friends are the experts in ‘the patient as an individual’.'

I am at loggerheads with some people, about the logical consequences of the above: notably about, for EoL at Home:

The patient might have recently expressed a decision, when only a relative was present to listen;

The family-carer who called 999 is the person more likely to understand if the patient would want CPR (i.e. a relative might understand if the loved-one in arrest would want to be resuscitated - the paramedic cannot understand that as the paramedic does not know the patient);

The best-interests question and answer, hinges on the person making a best-interests decision understanding what the patient would have decided.

When I join-the-dots, it seems to me that in many cases the family-carer or relative who called 999, understands what the decision about CPR should be, much better than an attending paramedic does. But some people, think all of this amounts to 'the paramedic makes 'the decision about CPR' after listening to the relative/s'. I don't - for me, decisions should normally be made by the person best-equipped to consider the decision.

In reality, we need to consider many issues - and my sugestion to resolve the problem can be found here:

https://www.dignityincare.org.uk/Discuss-and-debate/Dignity-Champions-forum/I-have-a-suggestion-for-how-family-carers-and-999-paramedics-could-be-reconciled-for-CPR-decision-making-feedback-from-family-carers-welcomed./1031/

Overall, and expressed loosely, I want the paramedics and relatives to get their heads together and with luck to all agree: in which case we should only say 'the relatives and the paramedics JOINTLY DECIDED about whether or not to attempt CPR'.

CONCLUSION

End-of-Life-at-Home can be very challenging indeed: things can happen and change very quickly and unexpectedly, relatives who understand their dying loved-one and who are present to listen usually lack clinical expertise, and paramedics who can be summoned and can provide clinical expertise lack any understanding of the patient as an individual. I want relatives to feel able to summon 999 paramedics, so that the clinical expertise of paramedics can be utilised. But if relatives believe that once summoned 'paramedics will take control' as opposed to helping, in some situations relatives will be forced to consider whether 'it is too risky to summon paramedics'. Paramedics want to help, and they should not be asked [by their own guidance] to make decisions which logically require a depth of understanding [of the patient's individuality] which they could never reasonably acquire during an emergency. Professional guidance, should not require levels of 'certainty' which are impossible to achieve in real-world situations.

We need a mindset change, which fully respects the clinical expertise of paramedics and also fully respects the understanding of the patient possessed by relatives: and which respects the problems of decision-making during emergencies. We are not there yet, but as one of my contacts wrote recently:

'I think we have made so much progress - [but there is still] much more to do'

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