A paper by Kitzinger et al about the Briggs ruling and MCA best-interests is well worth reading: and my 'but if you were a welfare attorney' analytical 'trick/tool'.
There is a recent paper about the Briggs ruling, authored by Jenny Kitzinger, Celia Kitzinger, and Jakki Cowley, which I was discussing on Twitter yesterday. The paper is ‘open access’ and you can download it at:
I can’t really take issue with the paper – it is very much in line with my own writing – but, I think people who analyse the Mental Capacity Act’s ‘best-interests’ are missing a trick. The trick is this, and if you start from this question, ‘it all becomes simpler’:
‘If I had just been appointed as a Welfare Attorney, and I was a ‘normal person untrained in either law or medicine’, then WHAT WOULD I CONSIDER that section 4 of the MCA was asking me to do?’
We can throw in some reality: most welfare attorneys will surely (I don't have the evidence, but this seems 'intuitively obvious') be appointed during end-of-life situations or 'dementia', and will not be making best-interests decisions (or, more correctly, will not have legal authority over best-interests decision-making) within the rather ‘specialist’ ‘coma-type’ situations such as the Briggs case. And it surely cannot be ‘our intention’ that end-of-life decision-making is routinely ‘sent to court for a ruling’.
IF WE USE MY STARTING POSITION (the question I pose above), then some obvious things follow, including:
a) if you have just been appointed as a welfare attorney, because a loved-one is ‘dying’ or is starting to develop dementia, you are likely to be concerned with helping your loved-one: you will NOT be spending a lot of time on ‘boning up’ on medicine, or studying court rulings;
b) so [from a)] whatever we need to know about best-interests decision-making, we must surely be able to discern that by reading the MCA itself, and perhaps the MCA’s Code of Practice;
c) it follows that any ‘normal person’ who takes the trouble to read the MCA and its Code of Practice, should be capable of ‘satisfactorily performing whatever ‘process’ best-interests decision-making requires’ [that MUST BE TRUE – the appointment as a welfare attorney imparts decision-making authority, it DOES NOT ‘magically impart decision-making ‘expertise’’].
Apologies for ‘writing without explaining’ from here on, to anyone who isn’t ‘an MCA geek’ - but those 3 things above, make this part of the Kitzinger et al paper questionable:
‘The relative weight to be given to a person’s own views in arriving at a ‘best interests’ decision and how to set those against ‘sanctity of life’ is not specified in the Act, but has developed through case law.’
The first bit is unequivocally correct – but ‘developed through case law’ is not a happy fit with ‘welfare attorneys will not be reading case law – but welfare attorneys must be capable of understanding the Act, or else they would not be given decision-making authority by the Act'. Yes, there is case law – although I don’t consider that the recent case law has ‘developed the Act’ so much as making clear what, it seems to me, was already the ‘internal logic of the Act’ (some earlier beliefs, and court rulings, were not in my opinion logically consistent with the MCA itself).
As Kitzinger et al write:
‘The Briggs case is hugely significant, then, for its potential to reverse the effect of W v M ...’
To me, the problem was that the judge in W v M did not actually apply the MCA : he set ‘preservation of life’ as a ‘paramount principle’ of best-interests decision-making, which seems to be ‘some sort of pre-MCA belief’, when in fact the MCA merely says:
‘4(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.’
We know that it must somehow (we need to work out how) be possible for a best-interests decision to lead to the death of a patient by the withdrawal of life-sustaining treatment, because the Act states that (it states it somewhat incorrectly – it should not be phrased in terms of ‘consent’, it should be phrased in terms of best-interests decision-making):
‘11(7) Where a lasting power of attorney authorises the donee (or, if more than one, any of them) to make decisions about P’s personal welfare, the authority—
(c) extends to giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P.
11(8) But subsection (7)(c)—
(a) does not authorise the giving or refusing of consent to the carrying out or continuation of life-sustaining treatment, unless the instrument contains express provision to that effect, and
(b) is subject to any conditions or restrictions in the instrument.’
So, we need to ask questions such as:
‘If a ‘normal person’ had read the MCA and its Code of Practice, how would such a person conclude that the withdrawal of a life-sustaining treatment could be justified as a best-interests decision ?’
This DOES simplify the analysis – not by altering the questions, but by hugely reducing the necessary ‘knowledge base’ needed to consider the answers to the questions.
So while I agree with Kitzinger et al when they write:
‘This makes the Briggs judgment very important for opening up discussion — and indeed invaluable, as a training tool — not only regarding the care of MCS patients, but also in relation to patients lacking capacity in a wide range of other conditions. We use the case to inform reflection in face-to-face training in care homes and are integrating it into an online e-learning resource.’
I would suggest that adding in my analytical ‘trick/tool’ of
‘‘If I had just been appointed as a Welfare Attorney, and I was a ‘normal person untrained in either law or medicine’, then WHAT WOULD I CONSIDER that section 4 of the MCA was asking me to do?’
would make sense.
I have just retweeted the tweet in which Kitzinger ety al promoted their paper about the Briggs ruling. My retweet, with a comment of my own, is at:
I am now in the process of posting a series of further comments [about the Briggs ruling and the MCA's 'best interests' more generally] on Twitter: all of the comments will be posted as 'replies' to the tweet whose url is directly above.