I think we need a different way of explaining and teaching the Mental Capacity Act (MCA)
I have attempted to suggest how the Mental Capacity Act (without its ‘detention’ provisions) could be taught to people who are not required to be ‘MCA experts’, so that most-of-the-time ‘people would get it right’.
I would not feel the need to do this, if I felt that the MCA was currently well-understood by most clinicians – unfortunately I think the MCA is still very poorly understood, even more than a decade after it became a law.
The PDF contains ‘my reasoning’, but my suggestions about how the MCA could be explained or taught are below – and if anybody wants to post their own description of how the MCA could be explained in this thread, please do that. I would also welcome posts from people who have had MCA-training, about what they found 'difficult to understand/follow' within that training.
Here is my own attempt, as it appears at the end of the PDF:
So, here is my attempt (I feel sure this could be improved upon) to describe Informed Consent and MCA Best Interests, in a concise and ‘usually correct’ way, in the context of medical treatments and in England or Wales:
If a patient seems to be able to understand the consequences of his or her decision, then the patient is probably mentally-capable. In which case, the role of a clinician is to inform the patient of the clinical consequences of accepting or refusing an offered treatment, after which the patient decides whether to accept or refuse.
If it is clear that a patient does not possess mental capacity for a particular decision, then decisions should be made in the patient’s best interests as required by the Mental Capacity Act. Best Interests always requires an attempt to be made to work out what the patient would have decided if the patient had been capacitous – a concept usually called substituted judgement. For treatments which are NOT life-sustaining, if it is understood what the patient would have decided if capacitous, then best interests can depart from ‘what the patient would have decided’ but explaining precisely how and why is ‘fuzzy’: the simplest way to think about it, is perhaps to say that a capacitous person is entitled to make ‘a bad decision’ but a best-interests decision-maker is expected to make ‘a good decision’ which gives the incapacitous person the ‘best’, when seen from the incapacitous person’s ‘future perspective’, future. For some situations which involve an incapacitous person and a life-sustaining treatment, best interests DOES become substituted judgement: if it is understood with sufficient certainty that the patient would, if capacitous, have refused a life-sustaining treatment then the treatment should be withheld or withdrawn.
If a Welfare Attorney or Court Deputy has been appointed, then that person’s role is to make best interests decisions which are within the scope of their authority, so clinicians should be providing information to help attorneys and deputies to make the best interests decisions.
If a valid and applicable Advance Decision has been made by the patient, then the decision removes the need for any best-interests decision-making to take place: indeed, best interests cannot legitimately occur if an ADRT is valid and applicable for the intervention being considered.
More pragmatically if ‘those close-to the patient’ and the clinicians involved openly and collaboratively get their heads together and all agree about what would be best for an incapacitous patient, then what they have agreed upon probably is a good best interests decision.
So when a patient is incapacitous, clinicians and the people who know the patient as an individual – especially family-carers – must work together to determine what is in the patient’s best interests. Family-carers in particular are not ‘passive observers’, and family-carers, relatives and friends who know the patient as an individual are ‘experts in the patient as an individual’, and clinicians must accept and respect that in the same way that lay people must accept that clinicians are experts in clinical things. Clinicians and ‘relatives’ MUST WORK TOGETHER and need to start from a position of TRUSTING EACH OTHER.
Associated files and links:
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Joining the Dots for EoL and the MCA
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Good evening Mike, I have been teaching this subject since 2017 and previously to that I was a registered manager for 26 years, I have struggled to get my staff to understand and I find it increasingly difficult for learners to understand. Thank you for a well written and simplified version for which (if you don’t mind) I will explain as you have written to see if learners understand it correctly, I will feedback to you in due course.
Regards
Marc
Hi Mark,
I must apologise for only just noticing your post.
Thank you for your 'supportive words' re my piece - and I would be really interested, to know if your 'learners' can make sense of what I've written.
Drat - Hi Marc! Apologies.
Not sure if I made that mistake, or if auto-correct stepped-in without me noticing: I've been sending many things to a doctor called Mark this morning.
The attached PDF, was cobbled-together to 'utilise' a series of tweets about Mental Capacity Act best-interests meetings. This PDF is a good fit with the 'Joining the Dots for EoL and the MCA' PDF which you can download from earlier in this Dignity in Care thread. The following was tweeted by a doctor [and this is where my title for the piece comes from]:
I have come out of a few Best Interests meetings where I, as the doctor, have had to remind myself that my opinion does not matter. That was always quite a step, and I know other doctors/HCPs increasingly ‘note this’. Perhaps evidence of change?
Associated files and links:
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Perhaps evidence of change
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There is some GMC guidance about end-of-life, and it contains a section 139 which is about decision-making around [attempting] cardiopulmonary resuscitation (CPR):
Patients who lack capacity
139 If a patient lacks capacity to make a decision about future CPR, you must
consult any legal proxy who has authority to make the decision for the
patient unless it is not practicable or appropriate to do so. If there is no
legal proxy with relevant authority, you must discuss the issue with those
close to the patient and with the healthcare team. You must make all
reasonable efforts to have these consultations or discussions at the earliest
practicable opportunity and they should be approached with sensitivity.
In your consultations or discussions, you must follow the decision-making
model in paragraph 16. In particular, you should be clear about the role that
others are being asked to take in the decision-making process. If they do
not have legal authority to make the decision, you should be clear that their
role is to advise you and the healthcare team about the patient’s wishes and
preferences to inform the decision about whether attempting CPR would
be of overall benefit to the patient. You must not give them the impression
that it is their responsibility to decide whether CPR will be of overall benefit
to the patient, or that they are being asked to decide whether or not CPR
will be attempted. You should provide any legal proxy and those close to
the patient, with the same information about the nature of CPR and the
burdens and risks for the patient as explained in paragraph 137.
The guidance can be found at:
The PDF contains some analysis of section 139 - which I consider to be seriously flawed - but I did not analyse '... to decide whether CPR will be of overall benefit' in my PDF, and I will do that now.
The question/phrase 'would CPR be of overall benefit to the patient' is deeply unhelpful, when the MCA is the law (as it is in Wales and England). We need to disentangle various things, and TO ORDER THEM CORRECTLY. For the attempting of CPR, we have to START with 'is CPR on offer or not?'. If the answer is 'CPR is not on offer' then we need to be clear as to why CPR is not on offer. If CPR is on offer, then it is application of the Mental Capacity Act which should determine whether CPR is attempted, or whether CPR is not attempted. Asking 'would CPR be of overall benefit to the patient' is somewhere between flawed (it isn't clear what it means) and simply wrong (if by their phrase, the GMC means something different from what I have written above).
Associated files and links:
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An analysis of section 139 in some GMC EoL guidance
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Apologies for the scrambling of the text - it was perfect on my computer screen when I pressed the 'post' button. So I cannot control that problem.
The National Mental Capacity Forum (NMCF) has been holding a series of MCA webinars, and there are 'recordings' of the webinars being placed online. I have watched two of the webinars so far, and I think they are good: although I suspect they do require some prior-understanding of the MCA, etc, on the part of the listener (as well as 'the MCA being a specialised interest'). A webinar which seeks to debunk the myth that 'next of kin' is a concept within the MCA can be found at:
https://www.scie.org.uk/mca/directory/forum/nmc-webinars/family-members
It is very good, and the 'passion of' the speakers shines through, but be warned that it takes an hour to listen to it.
The speakers are not really addressing my issues with End-of-Life-at-Home and cardiopulmonary resuscitation, and they are talking more about issues around mental health and living with a 'reduced' mental ability. But the contributors are clear about some things which I stress in my own writing - for example, that the MCA only gives 'authority over best-interests decision-making' to welfare attorneys, court deputies and judges. There is, in that context, some discussion around the idea 'that the professional is THE decision maker' - although, the consequences of 'there isn't anyone involved with 'authority over' best-interests decision-making' isn't as fully-explored in the webinar, as it is my own pieces.
One of the contributors, Lorraine Currie, tells us (although Lorraine points out that she is involved with the MCA and its application in several different roles - so it isn't entirely clear if these statements are meant to apply 'to a normal relative or family-carer) that
* I expect to be heard by professionals in their decision making
* I expect to be viewed as an expert not a nuisance
I find it interesting that Lorraine says 'I expect to be viewed as an expert' because it is what I wrote, in a Journal of Medical Ethics paper I contributed to:
https://jme.bmj.com/content/early/2020/12/02/medethics-2020-106490
Below is part of what I wrote in the paper, and its 'theme' matches what I discerned in the webinar (that family and friends 'are the people who know the incapacitous person best') , and you will note how I used 'expert' in the final sentence here:
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’.