What They Tend to Not Tell You about the Mental Capacity Act

mike stone 13/03/15 Dignity Champions forum

If anybody tries to tell you that the Mental Capacity Act 'is clear', then do not believe them. If anybody claims that health and social care professionals 'understand the MCA' don't believe them - those people are 'professionally required' to understand the MCA, but the evidence is that this is not the situation in reality.

The writings about the Mental Capacity Act (MCA) tend to say, or imply, that:

1) The MCA sets out clear guidance - well, it does for some things, but not for others: and to complicate matters, some of the things it is clear about are resisted by clinicians !;

2) Advance Decisions can be used to refuse a treatment should you subsequently lose the ability to refuse directly in the future (for example, if you become unconscious) - actually, often an Advance Decision would be ignored by 999 Paramedics;

3) The 'meaning of best interests' is defined and understood by doctors and nurses - well, it isn't at all clear exactly what 'best interests' means, and doctors and nurses do not understand this any better than anybody else;

4) The MCA sets out 'processes' - it doesn't, it sets out principles (although the Code of Practice starts to introduce 'processes' [presumably because the authors of the Code did not trust professionals to correctly interpret and apply the principles: also, professionals seem to like 'process' as a 'security blanket']);

5) The MCA explains how a clinician-patient interaction has to happen for MENTALLY CAPABLE patients - section 3 does that (section 3 does NOT 'explain how mental incapacity is assessed': it explains how 'informed consent' works when a patient is mentally capable. Judging by some of the comments I have read about the recent Nadine Montgomery court ruling, a lot of medics seem not to have noticed that section 3 of the MCA had already explained this process [for England]!;

6) Section 42 of the MCA does not make things simpler - it makes things a lot more complicated;

7) The MCA is NOT about 'shared decision-making' - it IS about 'informed decision-making'.

There are also Disputes about the Mental Capacity Act, primarily:

8) Did the MCA fundamentally change the legal situation, or did it somehow 'consolidate pre-existing [clinical] ideas about 'best interests' ?;

9) Is the MCA about patient autonomy, or is it about 'safeguarding' ?

Going through the above list:

1) The MCA is clear about the decision-making authority of Welfare Attorneys and Court Deputies - although some doctors and nurses resist this authority; the MCA is clear that Advance Decisions are in fact instructions; the MCA is clear that mental capacity is assumed present until its absence has been proven (clinicians often reverse that); the MCA is very unclear about how the 'preferences or opinions' of a mentally-incapable person [who by definition is not able to make the decision him/herself] should influence the decision made by a best interests decision-maker; the MCA does not define who can be a decision maker, despite most professionals claiming that it does; the interactions between the Mental Capacity Act and the Mental Health Act are very challenging; the concept of mental capacity being decision-specific (so a person can have capacity to make one decision, but lack capacity to make another decision, at the same time) is obvious, but how that works in practice must get very tricky for certain decisions.

See for some further analysis:

http://www.dignityincare.org.uk/Discuss_and_debate/Discussion_forum/?obj=viewThread&threadID=741&forumID=45

2) This hinges on 'treatment in an emergency' and where the 'risk' of a written Advance Decision being followed 'rests': I consider that 'if my ADRT looks okay - is signed, witnessed, clearly expressive - it should be followed by healthcare professionals, and that by my creation of the [written] ADRT I have 'absolved from blame' anybody who follows it - but 999 paramedics 'want to check the background of the ADRT before taking it at its face value', which isn't possible during an 'emergency'.

3) Nobody properly understands, how a best interests decision can correctly refuse a potentially-successful life-sustaining treatment, when section 5 of the MCA seems to point at preservation of life - all we know, is that a best interests decision can withhold life-sustaining treatment.

See for some further analysis (in particular, the PDF which can be downloaded):

http://www.dignityincare.org.uk/Discuss_and_debate/Discussion_forum/?obj=viewThread&threadID=741&forumID=45

4) What I said in 4 is correct - it is also problematic, because it results in the laymen who are involved 'following' principles, and the professionals following 'processes'. In theory, following the principles is correct: the principles 'imply the process'.

5) It cannot make any sense, to enact a new law 'unless the law changes things' - so it must logically be the case, that the MCA fundamentally changed things and did not 'somehow leave the earlier clinical concept of 'best interests' unaffected'.

See for some further analysis:

http://www.dignityincare.org.uk/Discuss_and_debate/Discussion_forum/?obj=viewThread&threadID=732&forumID=45

6) Section 42 of the MCA, states that certain categories of person must 'have regard to' various 'Codes' which are add-ons to the MCA. The purpose is largely to 'guide professionals' [into applying the MCA correctly]. That seems 'okay' - until you realise that normal family carers are not included within the categories of person who 'must have regard to' these codes. And neither is the patient.

So, consider a written Advance Decision. This can be created by a patient, and witnessed by laymen, and none of those people are legally required to have read any of these 'codes' - so they must assume, that written Advance Decisions (ADRTs) are COMPLETELY DESCRIBED by sections 24 - 26 of the MCA itself (an assumption, which must logically be correct). However one of the possible codes (42(1)(g) is:

'with respect to the provisions of sections 24 to 26 (advance decisions and apparent advance decisions)'

So what happens, if a 'code' is prepared about sections 24-26 (i.e. about Advance Decisions) and it 'seems different from sections 24-26 in the MCA itself' ? The patient creates his Advance Decision according to the Act, and professionals would be 'looking at the Advance Decision' through the filter of a code, which had no bearing at all on the creation of the ADRT, nor on how the creator of the ADRT expected professionals to 'read it'. That would obviously be an absurd situation !

7) I am baffled by the term 'shared decision making', although I keep seeing clinicians writing about it. I have made my vexation clear about this term:

http://www.bmj.com/content/349/bmj.g4855/rr/761712

The MCA incorporates the idea that a mentally-capable patient's own decision has to be followed, if the patient had been adequately-informed of the consequences of his/her decision. It uses the test (my own wording being used here) for best-interests decision-making, of 'was the decision-maker sufficiently well-informed to make the decision' (section 4(9) of the MCA uses that as the test of compliance with section 4 - it does not ask a decision-maker to in some way 'prove the correct decision was made', but it does require that a decision-maker has 'placed him/herself in the position of being able to make a properly-considered decision'.

8) It seems to me, to be 'all about patient autonomy' - the Act assumes mental capacity to make decisions until capacity is proven absent, it allows a person to project a decision forwards into an anticipated period of future mental incapacity, and it allows a person to chose a Welfare Attorney to control future best-interests decision-making.

See also the first 4 rapid responses at:

http://www.bmj.com/content/350/bmj.h841/rapid-responses

9) There is 'safeguarding' in the MCA, but professionals seem to stray well beyond the safeguards within the MCA, and to use 'safeguarding' to thwart the patient autonomy which is central to the Act.