An issue with ReSPECT which I will be pointing out to the Public Guardian

mike stone 04/09/17 Dignity Champions forum

NOTE: second attempt to post this - seemed to 'freeze up' when I just tried to post it.

I'll be sending the PDF to Alan Eccles, the Public Guardian for the Mental Capacity Act, later today: no need to go into details, you can read the PDF. But in brief - any recommendations on a ReSPECT form which are made on 'best-interests grounds' should not be 'signed off' by the senior clinician.

The form does that - only has clinical signatures on it - which seems to me to indicate that those learned clinicians who developed ReSPECT, do not accept that the MCA has moved 'decision-making' to patients, people chosen by patients, and other lay people involved in caring for mentally-incapable patients, and that 'clinical paternalism is supposed to be dead now'.

Associated files and links:

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Liz Taylor 12/09/17

Hi Mike

A very comprehensive analysis of the issues, thank you for continuing to take the time to address these issues. I too have some concerns about the potential power transfer in the ReSPECT process. It was difficult enough when we had hospitals putting DNARs in place without reference to anyone, but tis seems to move the whole thing to another level. Keep up the great work.


mike stone 25/09/17

Hi Liz, I asked in my e-mail for confirmation of receipt from the OPG/Alan Eccles. So far, not even confirmation of receipt, let alone any comment on the issue I'm trying to raise.

You are right, I think, about 'It was difficult enough when we had hospitals putting DNARs in place without reference to anyone, but this seems to move the whole thing to another level'.

ReSPECT 'has an attitude' which seems to be 'in denial' about the transfer of decision-making away from clinicians, towards the patient and other involved lay persons.

mike stone 26/09/17

The Office of the Public Guardian has now replied to an e-mail I sent yesterday, asking if I would get confirmation of my original e-mail. The OPG seems to think that clinicians writing guidance which is clearly 'in contradiction of' the Mental Capacity Act is not its concern - the OPG has pointed me at the Department of Health. This 'passing the buck' can go on forever, in my own experience.

The e-mail from the OPG:

Dear Mr Stone

Thank you for your email below.

I am sorry for the delay in response. We have referred your concern to our Policy team and they have advised that this is not a matter for the Public Guardian to deal with. It may be advisable to take the matter up with the Department of Health who are better placed to deal with issues concerning treatment decision at end of life.

I hope this information is helpful.

Kind Regards


mike stone 26/09/17

Further explanatory e-mail from the OPG (this didn't come as a surprise to me - it was a contact who suggested that I try the OPG re my issues with ReSPECT, and I never had any expectation of success anyway):

The Public Guardian does not have authority over how organisations carry out their duties and whether these are compliant with the Mental Capacity Act (MCA). The Public Guardian is not a 'custodian' of the MCA; he cannot become involved in how an organisation carries out its duties and whether these are in line with the MCA, or any other legislation.

The Public Guardian has jurisdiction over attorneys and deputies who act on behalf of people who lack mental capacity. If concerns are raised about an individual who is acting as an attorney or a deputy then the Public Guardian can investigate those concerns.

I hope this information clarifies the OPGs role.

Kind Regards

mike stone 06/10/17

I have sent my issue/concern/complaint re ReSPECT to the Department of Health, and an e-mail to me has confirmed receipt - if and when the DH gets back to me with a proper response, I will update here:

Message body
Thank you for contacting the Department of Health. Please note that queries are only monitored between 9am and 5pm Monday to Friday. This is an acknowledgement - please do not reply to this email.
If you require medical treatment please dial 111, visit NHS Choices, or contact your GP surgery. For emergencies please dial 999. The Department cannot provide clinical advice.
Where a reply is appropriate, we aim to respond within 18 working days, or 20 working days if your query is a Freedom of Information request or complaint.

If you have contacted the Department of Health about a current health or social care campaign, please visit the Gov.uk where a response may have been published. You may also find it helpful to refer to the Department of Health's what we do section.

Please note that the Department of Health does not handle complaints about the NHS or social services. If you wish to make a complaint about a healthcare professional, an NHS organisation or a social care provider, please visit the complaints procedure page on Gov.uk.

You can find out more about the Department’s commitments from our Personal Information Charter.
A copy of your query can be found below:
Message:

Dear Sir or Madam,

I raised an issue with the OPG/Alan Eccles, and I was pointed at the DH.

I attach the PDF which explains my issue, as sent to the OPG and Alan Eccles.

I also attach a PDF copy of an e-mail [which contains the e-mail from the OPG pointing me at the DH] which I sent to Jackie Doyle-Price on 26th September.

Will the appropriate person at the DH please read both of the PDFs, and then get back to me with a response about my concern(s), and please respond to me by e-mail and not by phone,

Regards, Mike Stone


mike stone 17/10/17

About a week or so ago, I sent a question to the Care Quality Commission: it amounted to 'does the CQC consider that ReSPECT is legally correct in terms of 'consent' as described in English Law'.

I have also just received a reply from the Department of Health [and nobody has ever suggested that ReSPECT is a DH publication, so far as I'm aware]:

Dear Mr Stone,

Thank you for your further correspondence of 5 October to Jackie Doyle-Price about the Recommended Summary Plan for Emergency Care and Treatment (ReSPECT). I have been asked to reply.

I should point out that, notwithstanding the advice you were given by the Office of the Public Guardian, ReSPECT is not a Department of Health publication.

Your concerns would be best dealt with by NHS England at [log in to view email address].

I am sorry I cannot be more helpful.

Yours sincerely,

DH Reply to me ends.

I did copy-in the NHS England end-of-life lead, Bee Wee, when I asked the DH my questions - I started by pointing that out.

I also asked the DH a DIFFERENT QUESTION - which it has not, I think, clearly answered - my e-mail to the DH (well - one of them):

Dear Ms Doyle-Price,

I used an online contact form this morning to request a DH e-mail address which I could use to raise a concern I have, but I have just ‘found you’ in connection with ‘Choice in end of life care: government progress’. It seems to me, that you are probably a suitable person at the DH to raise my concern with.

I was pointed at the DH by the Office of the Public Guardian: in case the DH points me at NHS England or back at ‘ReSPECT’ I have copied in Bee Wee and Juliet Spiller.

BACKGROUND to my e-mail to the OPG:

I happened to mention that I had some objections to something called ‘ReSPECT’ to one of my contacts, and my contact e-mailed to me a similar issue, expressed more succinctly:

I can’t see in the ReSPECT form/guidance any difference between the status of a Health & Welfare Attorney (appointed under the LPA) and any other relative or indeed passing stranger - which seems wrong to me.

When I put this to the same contact:

Who - which 'organisation or body' - is able to issue 'we believe' or 'we consider' statements, about the interaction of the MCA and written NHS records?

Who could issue a statement of:

'We consider that if an NHS document contains an anticipatory best-interests decision, and that decision was made and expressed by a suitably-empowered Health & Welfare Attorney or Court Deputy, the record should be signed by the attorney or deputy'.

The NHS likes ACP - and it does record anticipatory BI decisions (it is not clear that BI decisions should be made in advance, but that is more complex), but it always has the senior clinician doing the signing. Just for once, the MCA is blindingly clear about decision-making authority in that situation: so it should be the attorney or deputy whose authority encompasses the decision, who should be signing a record of it unless you apply some really weird logic!

So I would like to make a start, by getting those attorney/deputy signatures to replace clinical signatures, where logically appropriate: then 'I can work outwards from there'.

So, who could issue such a statement with some clout - DH, CQC, NHS England, HEE or who?

You will have guessed the follow-up question - 'and how do I get them to do it?'.

The reply I received was:

I truly don’t know the answers to your questions.

DETAILS of my concern:

I have attached the PDF which I sent to the OPG, and it [I hope] makes my concern/complaint very clear indeed, so I need not repeat the details in this e-mail, which you should regard as ‘a cover note for’ the PDF. Can the DH please supply me with an answer to that question I have posed above (Who could issue a statement of: 'We consider that if an NHS document contains an anticipatory best-interests decision, and that decision was made and expressed by a suitably-empowered Health & Welfare Attorney or Court Deputy, the record should be signed by the attorney or deputy'.). Note that I am asking 'who could' - I am not asking if anyone will, because the 'will they' depends on whether or not my analysis [as present in the PDF] is accepted,

Yours sincerely, Mike Stone


mike stone 16/11/17

Having been pointed at NHS England by the Department of Health, I received this reply from NHS England yesterday:

Dear Mr Stone

Thank you for contacting NHS England. Please accept my apologies for the delay in responding.

On this occasion the Customer Contact Centre is unable to assist with your enquiry and provide you with a specific response as I have been unable to locate any documents published by NHS England that refer to the question that you have asked in your below email.

I am however attached a guidance that has been published by the British Medical Association (BMA), The Resuscitation Council and The Royal College of Nursing. If you need further assistance I would suggest contacting The Resuscitation Council https://www.resus.org.uk/contact-us/general-enquiries/ directly.

Regards

[name redacted]