MCA Best Interests compressed to a single sentence: an ansatz

mike stone 16/11/17 Dignity Champions forum

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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mike stone 17/11/17

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.

mike stone 13/02/18

I have been asking this question on Twitter recently - for example at:

So far - NOBODY has suggested their own answer.

Which is 'a bit disturbing' - because (see 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:

mike stone 26/02/18

I'm still waiting for alternative suggested sentences, but I've just had an opinion on my sentence, given on Twitter:

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 :)

mike stone 24/03/18

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?’

mike stone 09/04/18

Sally Lewis, National Clinical Lead for Value-based Care. GP. Honorary Professor, Swansea Med school, has commented in her tweet at:

'In my opinion your sentence encapsulates it very well and I am not sure I can do better'

mike stone 13/12/18

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]'.

mike stone 28/02/19

Lucy Series has just commented on my sentence on Twitter:

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.

mike stone 19/03/19

After she tweeted this:

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.

Hugh Constant 19/03/19

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.

mike stone 21/03/19

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:

Not sure I know anyone who could come up with a better one-sentence encapsulation.

mike stone 03/04/19

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:

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