MCA Best Interests compressed to a single sentence: an ansatz
I have been reading about the Mental Capacity Act since about 2009, and debating the MCA’s meaning with doctors, lawyers, other lay campaigners, etc.
It is clear, that despite section 4 of the MCA – the section which describes Best Interests – being short, there is still a lack of complete agreement about what section 4 is telling us. Disturbingly, I read debates about that in the ‘ethical sections’ of medical journals, and in court rulings (court rulings invariably quote earlier court rulings, in a sort of ‘chain’): I say ‘disturbingly’ because it is clear that perfectly normal family carers of mentally-incapable people, are REQUIRED TO APPLY section 4’s best-interests requirements. And ‘normal people’ DO NOT spend endless hours reading obscure medical journals, and lengthy court judgements. So - if section 4 of the MCA alone isn't sufficient - how are people such as the family carers of people living with severe dementia, or the family carers of terminally-diagnosed loved-ones, going to understand what their duties are under the MCA?
Obviously, the best approach would be ‘read the Mental Capacity Act itself, and figure it out for yourself’: but even many nurses and doctors, seem to struggle to do that.
So, I decided to see if it is possible to correctly describe section 4 of the MCA in one or two sentences – it turned out, that in the end I only needed a single sentence. The attached PDF explains how I arrived at this single sentence (and explains what an ansatz is) – I invite readers to tell me if they believe it is a correct description of MCA section 4, and/or to suggest their own single-sentence descriptions of ‘the rule/guide for best-interests decision-making’. Also, to tell me whether the sentence is easier to understand, than section 4 of the MCA?
This is my sentence:
The objective is to make the best-interests decision which would result in the most satisfactory future when considered from the perspective of the incapacitous person as an individual.
Associated files and links:
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My Description of MCA Best Interests in one sentence
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Just noticed that I was 'lax with words' in my PDF, when I wrote:
In physics, an ansatz is effectively an ‘informed guess’ and it normally takes the form of one or more ‘new equations’ – then, it is assumed that the equations work, and if the results seem to fit with experimental results, the new equations are accepted. If the experiments don’t
fit the ansatz, then the ansatz is rejected.
I referred to the predictions of the new equations as 'results' in there - I should have written:
In physics, an ansatz is effectively an ‘informed guess’ and it normally takes the form of one or more ‘new equations’ – then, it is assumed that the equations work, and if the predictions seem to fit with experimental results, the new equations are accepted. If the experiments don’t
fit the ansatz, then the ansatz is rejected.
I have been asking this question on Twitter recently - for example at:
https://twitter.com/MikeStone2_EoL/status/963003810233880576
So far - NOBODY has suggested their own answer.
Which is 'a bit disturbing' - because (see https://twitter.com/MikeStone2_EoL/status/963386347347238913) the ReSPECT process/form, which is being currently 'rolled out' across the country, ACTIVELY PROMOTES the making of best-interests decisions by clinicians during 'emergencies'.
Paradoxical to expect our clinicians to apply 'MCA best-interests' during emergencies, if they cannot summarise 'what MCA best-interests means', in my opinion.
Although - we should not be promoting the making of best-interests decisions during 'clinical emergencies', instead we should be promoting the making of Advance Decisions by patients, and the following of advance decisions by clinicians:
https://twitter.com/MikeStone2_EoL/status/963386349431738368
I'm still waiting for alternative suggested sentences, but I've just had an opinion on my sentence, given on Twitter:
https://twitter.com/jakkicowley/status/968121631024480258
From Jacqueline @jakkicowley
I like your descriptor though I suspect some would say 'ooh that's more substituted decision making and we don't do that'. I have to tackle my to do list before new sentences but I'll do it :)
Rachel Griffiths @RachelG_MCA sent me this reply by e-mail - the original has some coloured text in it for 'highlighting', but of course that will not show up here: it should still make sense, without the colours, I hope.
Best interests in one sentence:
I can’t do better than echo Lady Hale in Aintree University Hospital NHS Foundation Trust v James ([2013] UKSC 67, [2013]: The purpose of best interests decision-making is ‘to consider matters from the patient’s point of view’
‘Insofar as it is possible to ascertain the patient’s wishes and feelings, his beliefs and values or the things which were important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being.’
In a much earlier case, Re S and S (Protected Persons), C v V ([2009] WTLR 315, [2008], the judge (Her Honour Judge Hazel Marshall) said:
‘... where P can and does express a wish or view which is not irrational (in the sense of being a wish which a person with full capacity might reasonably have), is not impracticable as far as its physical implementation is concerned, and is not irresponsible having regard to the extent of P’s resources (ie whether a responsible person of full capacity who had such resources might reasonably consider it worth using the necessary resources to implement his wish) then that situation carries great weight, and effectively gives rise to a presumption in favour of implementing those wishes, unless there is some potential sufficiently detrimental effect for P of doing so which outweighs this.’
She (Her Honour Judge Hazel Marshall) went on:
‘What, after all, is the point of taking great trouble to ascertain or deduce P’s views, and to encourage P to be involved in the decision making process, unless the objective is to try to achieve the outcome which P wants or prefers, even if he does not have the capacity to achieve it for himself?’
Sally Lewis, National Clinical Lead for Value-based Care. GP. Honorary Professor, Swansea Med school, has commented in her tweet at:
https://twitter.com/RslewisSally/status/982638915596283909
'In my opinion your sentence encapsulates it very well and I am not sure I can do better'
I noticed a mistake on the penultimate page of the PDF when I was re-reading it yesterday. It says 'Mr Justice MacDonald did point out ...' when it should have said 'Mr Justice Jackson did point out ...'. One of those mistakes which I don't 'pick up' when I'm proof-reading my own stuff just after I've written it, because 'my eye sees what I'd intended to type [instead of what I'd typed by mistake]'.
Lucy Series has just commented on my sentence on Twitter:
https://twitter.com/TheSmallPlaces/status/1101076858198786051
I really like your sentence!! It's a great approximation of what I think Lady Hale may have been driving at in Aintree. That being said, I think there's a lot of room for manouevre in terms of what filters we overlap on the person's perspective.
After she tweeted this:
https://twitter.com/drkathrynmannix/status/1107604472950374400
I sent a direct message (DM) on Twitter to Dr Kathryn Mannix, author of the best-selling book 'With the End in Mind', asking if she would contribute to this thread. Kathryn sent this comment to me [as a DM], with 'I'm happy for that DM to be quoted':
I like your sentence because it helps decision-makers and those participating in a decision-making process to be clear about the task: no-one can make clear decisions in advance about every situation that may arise in the future. By understanding the individual's values and preferences (an expression I know you dislike but that I believe is what we must consider in any situation that an incapacitous person has not left us guidance about), we can hope to reach decisions that match the individual's future as closely as possible to their preferences.
Hope I'm making sense.
Mike, I think it's an excellent sentence summary. And thank you for introducing me to the word ansatz. A few more educated guesses in my Physics O-level and I may not have got a U.
in addition to his comment in this thread (19/03/19), Hugh Constant [whose background as I understand it is in Social Work] has also tweeted:
https://twitter.com/HughConstant1/status/1108018674101678080
Not sure I know anyone who could come up with a better one-sentence encapsulation.
I've asked Dr Chris Danbury for a comment on my sentence via Twitter - he says I can post the tweets in this thread.
Chris is a Mediator and ICM Physician, and the first of the tweets he made (I'm showing a series of 3 tweets here) is at:
https://twitter.com/Medic_Mediator/status/1113077151744626690
Ok, every #mediation is different to the others. Trying to set predetermined tasks does not help in my experience. The dispute to be resolved is set by the participants at the time.
I would refer you to Lady Black's speech in Re Y. I think this is very helpful.
In most cases the #mediation will aim to 1. Establish what is agreed, 2. Establish what is not agreed, 3. Try to determine what is in the best interests of P.
If this can be agreed - good. If this can't then as LAdy Black says - need to go to CoP
With regards to your sentence. It is a fine sentence.
My experiences of disputes in these areas is that they do not revolve around definitions, but revolve around feelings, and emotions
I was sent something by a doctor, which was in part responding to my dislike of the ReSPECT form (I don’t like its ‘recommendation’ around CPR/DNACPR, because I think section 4(6) of the MCA calls for a consideration of information, not of ‘recommendations’). But the doctor wrote about ‘Duty of Care’ and ‘Bolam’, in a way which I think doesn’t fit with MCA Best-Interests determinations about CPR/DNACPR (in other words, when CPR might be clinically-successful), nor with the consideration of CPR/DNACPR when the patient is mentally-capable. The doctor wrote the following:
‘Ultimately, the definition of recommendation is a suggestion or proposal as to the best course of action, especially one put forward by an authoritative body. Whilst someone may think the best course of action is different than another person, within medicine we follow the Hippocratic oath 'to first do no harm' and we are measured on our actions by the Bolam principle or test. The Bolam principle is used to determine whether a medical professional has breached their duty of care. The Bolam principle: "tests whether the actions of the health professional in question could be supported by a ‘responsible body of clinical opinion’".’
Lady Hale, in the Montgomery case, explained that Bolam doesn’t apply to value-judgements of the acceptability of clinical outcomes (my uppercase here):
115. In any event, once the argument departs from purely medical considerations and involves value judgments of this sort, it becomes clear, as Lord Kerr and Lord Reed conclude at para 85, that the Bolam test, of conduct supported by a responsible body of medical opinion, BECOMES QUITE INAPPOSITE. A patient is entitled to take into account her own values, her own assessment of the comparative merits of giving birth in the “natural” and traditional way and of giving birth by caesarean section, whatever medical opinion may say, alongside the medical evaluation of the risks to herself and her baby. She may place great value on giving birth in the natural way and be prepared to take the risks to herself and her baby which this entails. The medical profession must respect her choice, unless she lacks the legal capacity to decide (St George’s Healthcare NHS Trust v S [1999] Fam 26). There is no good reason why the same should not apply in reverse, if she is prepared to forgo the joys of natural childbirth in order to avoid some not insignificant risks to herself or her baby. She cannot force her doctor to offer treatment which he or she considers futile or inappropriate. But she is at least entitled to the information which will enable her to take a proper part in that decision.
What I usually call ‘a deep consideration’ [or similar phrase - and I've been known to write 'a genuine best-interests decision' to distinguish it from a determination which is based on 'the average patient'] of an MCA best-interests determination, requires a deep understanding of the patient as an individual – something often possessed by the patient’s close family and close friends, but very rarely possessed by the clinicians involved. Which is one of many reasons, why I VISCERALLY DISLIKE the ReSPECT form with its ‘recommendation’ SIGNED BY ONLY A DOCTOR.
In passing, I will point out that I’m not sure that the ‘Duty of Care’ as understood by doctors in a historical sense (which is to say, how that would have worked before [let us say] 1950) hasn’t been swept away during the last 20 years by court rulings and the Mental Capacity Act. In a contemporary world where capacitous patients make their own decisions (Montgomery), where MCA Best Interests must be applied if the patient isn’t the decision-maker, and when logically we can require that doctors are ‘clinically-competent’, I can’t see how ‘Duty of Care’ fits in bearing in mind those constraints and requirements?