Is the power of a Welfare Attorney (LPA) largely an illusion?: a response to 39 Essex Chambers

mike stone 08/04/21 Dignity Champions forum

The NHS has recently updated its online information about CPR/DNACPR, and the lawyers of 39 Essex Chambers have commented on it in their 'Mental Capacity Report: The Wider Context', March 2021, Issue 112. The Essex Chambers writers, on page 3, suggest that a welfare attorney whose authority extends over CPR, can only make and express a DNACPR decision at the time the patient/donor is ACTUALLY IN cardiopulmonary arrest. I wish to comment on this suggestion/assertion.

I would absolutely agree that a best-interests determination should ideally be made at the time the treatment would be applied or withheld: that is a logical consequence of 'the decision should be up-to-date'. But the NHS [and in fact judges, notably in the context of 'future CPR' during 'coma' situations] does entangle future CPR/DNACPR within its Advance Care Planning. Exactly what this future-planning is in legal/technical terms - I prefer something like 'anticipatory best-interests decisions' whereas ReSPECT uses 'recommendations' (neither term is ideal: in essence, an informed person or group of people now, are trying to somehow 'project into the future' their understanding to less-informed clinicians who might subsequently become involved) - is very tricky to describe. Fortunately, I need not do that yet (although I will return to this word 'recommendations' later) because first I am going to point at 'something weird' within the Essex Chambers position.

Suppose the patient/donor has already lost mental capacity, having previously given a welfare attorney legal powers over best-interests decision-making about CPR/DNACPR. The reason the patient did that, is both simple and obvious: the patient wanted the decision about CPR to be made by his/her chosen attorney/s - NOT by doctors and other clinicians. If ACP and similar processes/documentation is to be used by the NHS to influence future CPR decision-making, then CLEARLY THE PATIENT WANTED THE ATTORNEY to 'control' such ACP etc: that is why you give your attorney powers over best-interests decisions. The 'ethos of' the MCA, seems to me to be that if I lose capacity, then my welfare attorney should be making any necessary best-interests decisions, AND ALSO by implication 'controlling any 'recommendations/documents'' pertaining to best-interests decisions which are being anticipated.

What Essex Chambers actually wrote, is this (with upper case replacing their original bolds, as DiC does not use bold):

'It is suggested that this is in fact, not the case. An attorney has the power to make a decision AT THE TIME that CPR is not to be carried out. It is not obviously the case that an attorney has the power to decide, IN ADVANCE, that CPR should not be carried out. Rather, the attorney's indication that the donor would not wish CPR is a factor that should carry very significant weight in the decision whether to make a DNACPR recommendation.'

The lawyers of Essex Chambers, seem to be arguing that during ACP, this authority of the attorney should not be 'present' (for want of a better word - I think 'present' works). In law, the attorney's legal powers are triggered at the point when the donor (the patient) loses the mental capacity to make his or her own decision - in this case, a decision about CPR. But if the position of Essex Chambers is correct, then the following 'paradox' is the result:

'I can appoint a welfare attorney with authority over CPR decision-making, because I want the attorney and not clinicians to make best-interests decisions about CPR/DNACPR, but if my attorney is to make those CPR decisions then my chosen attorney must stay at my side 24/7 to ensure he/she is physically present when I have a cardiopulmonary arrest.'

The Mental Capacity Act distinguishes between life-sustaining treatments and non-life-sustaining treatments, but the Act does not distinguish between 'stable life-threatening situations' (for example, life-sustaining treatments which could if applied keep a comatose patient alive for months or years) and 'immediately life-threatening situations' (such as CPR, which has to be attempted as soon as possible when an arrest occurs, and which will normally be either successful or discontinued within less than a hour or so). And (section 7.29 of the MCA Code of Practice explains this very clearly), what the Act says is that if a suitably-empowered attorney expresses a decision that withholding or withdrawing a life-sustaining treatment is in the patient's best interests, clinicians can provide the treatment in an effort to keep the patient alive WHILE THE COURT IS MAKING A DECISION. There is obviously not enough time for anybody to apply for a court ruling after a patient enters cardiopulmonary arrest and before CPR is attempted: so logically, if an attorney who is present says 'no CPR' then CPR should not be attempted (strictly, because 'defying' the attorney's decision removes a legal defence, I should write that 'CPR should not be attempted by anyone who does not want to be prosecuted').

Consider a patient in a coma, in hospital, and an attorney who is at the patient's bedside, discussing a life-sustaining treatment such as CANH or artificial ventilation with the clinicians. The attorney tells the clinicians to withdraw the life-sustaining intervention: Essex Chambers do not appear to dispute that the attorney has the power/authority to do this. But, when we apply what Essex Chambers assert about CPR to this scenario, it seems that as soon as the attorney leaves the bedside/hospital, the hospital's clinicians (even the clinicians who the attorney was talking to face-to-face) can simply decide to reinstate the life-sustaining treatments. WITHOUT APPLYING FOR A COURT RULING. If this is how the Act works - then why does it say (section 6(7) and 7.29 in the Code) that clinicians can go against the attorney's decision, and try to keep the patient alive 'while a decision is sought from the court'? If simply waiting until an attorney is no longer physically present, is sufficient 'to remove the attorney's authority', then why bother to put section 6(7) in the Act at all?

Returning to CPR, ACP and 'recommendations'. Consider THE ACTUAL SITUATION. It would involve clinicians, attorney/s, and relatives/friends, plus others in theory, discussing CPR for an incapacitous patient. The legally-sensible question, is 'if the patient arrests now, would attempted CPR be in the patient's best interests?' (this is the legally-sensible question, because it is compliance with the MCA's best-interests framework which provides legal protection). The next question, if we introduce ACP, is 'would my decision about CPR if he arrested now, be likely to be any different if he arrested tomorrow, or in several days time?'. Unless the answer to the second question is 'no - I wouldn't attempt CPR if arrested now, and [to a high degree of certainty] I would not attempt CPR if he arrested tomorrow, or the day after' then ACP for CPR is inappropriate. Only a 'stable' position about DNACPR should be recorded within ACP.

The reader will have noted, that my people who are considering DNACPR 'if he arrests NOW' are considering a best-interests decision: which, as Essex Chambers admit, is a decision the attorney possesses legal authority over at the time. The phrasing Essex Chambers use - 'recommendations' - to describe what is recorded on the ACP document for CPR/DNACPR, has replaced what the discussion was actually about: BEST INTERESTS. And if we use my description - 'anticipatory best-interests decision' - then of course two obvious questions pop up: if the attorney makes best-interests DNACPR decisions in the present, then why is that not also true during ACP; and the related, or rephrased, 'why does the doctor control ACP for DNACPR, when the attorney controls DNACPR in the present'? I see no logic, to the assertion that while an attorney has legal authority over CPR/DNACPR in the present, as soon as we move to ACP about CPR/DNACPR in the future, the doctor has 'authority' instead of the attorney. And that, I have explained within my thread objecting to ReSPECT:

It is true, that prima-facie the MCA does not allow for an attorney to project authority into the future by means of documentation. But it does not follow from the truth of that, that what Essex Chambers wrote here is correct:

'Rather, the attorney's indication that the donor would not wish CPR is a factor that should carry very significant weight in the decision whether to make a DNACPR recommendation.'

So, at risk of restating what I have already written: firstly - see my description of the actual discussions, above - the attorney would not be 'giving an indication that the donor would not wish [for] CPR': any attorney who has read the MCA, would be saying 'my decision about CPR now would be 'whatever' - and unless something changes, that would also be my decision next week'. Secondly: how and why, for this 'planning ahead' and making 'recommendations' about future CPR on a document, do we arrive at 'the document is signed by the doctor, as opposed to the document is signed by the attorney'? Thirdly (linked to secondly), why is it not 'more legally compelling' for a clinician reading ACP documentation which seeks to persuade that clinician to withhold CPR on best-interests grounds, to see on the documentation the signature of the attorney with legal authority over best interests decisions, instead of the signature of a doctor?

Please be aware: I was trying to be concise in the above [even if readers consider I failed in that objective] so I could have written more comprehensively, but the piece would have been much longer!

I would be very interested, in the views of Dignity in Care readers on the above: so if you can make any sense of what I have written, please post your comments if you wish to.

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mike stone 09/04/21

To add some of the discussion which I did not include in the above piece, I will now elaborate on one issue.

If 39 Essex Chambers had written 'the objective of best-interests decision-making is to withhold CPR, if it is believed with sufficient certainty that the patient would have refused CPR in the situation of the arrest', then I would have agreed with them. See my piece here:

Which can be expressed as 'if the patient would not wish for CPR, then DNACPR is the correct best-interests decision' (this conclusion, is I believe 'proven' provided the patient was capacitous until a cardiopulmonary arrest itself removed the patient's capacity: it is more complicated, if we are considering CPR when the person has been incapacitous but 'engaging with life' for a long period before the arrest occurs). But when explained as I have just done, it is clear that a person who says 'I know he would not wish for CPR' is in fact saying 'I feel sure that DNACPR is in his best interests'. This is quite fundamental to my analysis of the Mental Capacity Act - which I think of, at a 'pragmatic level', as leading to things which include:

1) There will, during and after 'discussions', be some people who are only ever contributing information, and other people who can each individually say 'I consider that I now understand enough to express a deeply-considered best-interests determination';

2) Only the authority imparted by MCA 6(6), or by the role of a Judge, allows for the 'imposition of' one person"s best-interests determination onto another person who has arrived at an opposing best-interests determination.

It is - to use a word Essex Chambers used - 'obvious' that the situation is complicated, because while my 2 is very clear (except for a hideously tricky issue stemming from MCA 42!), the framing of section 4 means that what I would describe as 'a lightly-considered best-interests decision' is also defensible according to section 4 IN CERTAIN CIRCUMSTANCES. Those circumstances, stated in lay language, being 'I had to make a best-interests determination without it having been possible for me to acquire an in-depth-understanding of the factors in MCA 4(6)'.

While I am writing, I will explain that section 4(7) of the MCA can be misleading. When it says that a person who is making a best-interests determination must consult any welfare attorney or court deputy, it can only mean 'when the authority of the attorney or deputy DOES NOT EXTEND OVER the best-interests decision': if the attorney or deputy had authority over the decision, then clearly the attorney or deputy would be the person who is applying section 4 - and it is madness to write 'you must consult yourself'!

mike stone 09/04/21,_%27Mental_Capacity_Report%27_(issue_112,_March_2021)

With luck, that link will take you to an Essex Chambers webpage from where you can find the piece I discussed above: this tablet I am using, is much better at downloading things than it is at letting me store weblinks.