Mike’s Cheeky Blog: About a Tweet
I was rather surprised on Saturday, by a tweet from Celia Kitzinger: so far as I can figure out (we only very briefly discussed it before we both went offline, and I have not yet returned to Twitter for further developments), Celia interpreted my tweet that ‘sometimes withdrawing hydration would be murder’ as meaning that I was saying that it couldn’t be legal to withdraw hydration from patients who are not dying. Well, it can be perfectly legal to withdraw hydration, and it can be murder.
The point – where this has to start and end – is that the Mental Capacity Act allows for the withdrawal to be legal, but the MCA did not change the default of ‘preservation of life’ IF the best-interests requirements of section 4 cannot be complied with.
The situation, analysing the MCA and assuming that MCA section 6(6) is not in play, in my opinion can be in essence summarised as:
The default position is preservation of life UNLESS your decision contrary to that is defensible [according to the MCA];
‘defensible according to the MCA’ means that you can reasonably claim to have satisfied MCA 4(9);
And the objective of your best-interests decision-making should have been: 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.
Put simply, if the MCA is being applied correctly, then if we consider CANH (which is the issue of most interest to Celia – whereas for me, CPR is the intervention I am most interested in):
If you understand enough of the factors in MCA 4(6) to properly consider best interests, then irrespective of the clinical prognosis of the patient receiving CANH (so, irrespective of whether the patient is improving or deteriorating, or is stable, clinically), it is [legally] possible to conclude that withdrawal of CANH would be in the patient’s best interests;
If you DO NOT understand enough of the factors in MCA 4(6) to properly consider best interests, then your decision should be preservation of the patient’s life (therefore, continuation of CANH).
What I was writing about, in my tweet which I believe Celia misinterpreted, was the situation of for example an elderly, frail, incapacitous patient who was not ‘clearly dying’ but whose future quality of life seemed very poor TO THE DOCTOR, and that doctor deciding to withhold hydration, or withdraw CANH – that looks like murder, when I look at the law, because THE DOCTOR cannot satisfy:
If you understand enough of the factors in MCA 4(6) to properly consider best interests, then irrespective of the clinical prognosis of the patient receiving CANH, it is [legally] possible to conclude that withdrawal of CANH would be in the patient’s best interests;
I’ll keep this short – so, for further discussion ‘on the theme’ read my two recent pieces at:
But I will add something on a different theme: on the justifications for withholding treatments which are NOT within the MCA. So, within the overall context of ‘the NHS exists to offer to patients treatment which the NHS can afford to provide’, we also need to factor in the following.
The MCA describes CONSENT and it also describes the REPLACEMENT FOR CONSENT DURING MENTAL INCAPACITY.
The MCA does not include any of the following, which while legitimate are NOT ‘MCA’:
1) The NHS has to be ‘fair to all’ - so, if a treatment is too expensive to be provided by the NHS, it can legitimately not be offered;
2) If a ‘treatment’ would not be clinically effective, it does not have to be offered;
3) This one is much trickier than no 2 – if different treatments have different ‘clinical success rates’ and/or different costs, then ‘which treatments should be offered’ is a complex analysis [which I am not going to get into]. An analysis of this one, is something I would invite those people who keep using the phrase 'shared decision making' to lay out.