SOME COURT CASES RELEVANT TO THE MENTAL CAPACITY ACT and to BEST-INTERESTS DECISION-MAKING

mike stone 22/11/16 Dignity Champions forum

I tend to pay attention to court rulings, which seem to 'explain' the Mental Capacity Act. And related court cases.

Doctors seem to only pay attention to a limited number of court cases, and one of these is the recent 'Montgomery' ruling. The Montgomery ruling explained that at the end of the 1990s and in Scotland (where the MCA is not the law - and even in England the MCA was not yet law back in the 1990s), 'informed consent' meant exactly that: ignoring a few limited caveats (there are always a few caveats) the judges made clear that the doctor must explain the things which might affect the patient's decision-making. A doctor must not withhold information which the doctor thinks might result in the patient 'making the 'wrong' decision'. The Royal College of Surgeons in England, has recently published some new guidance about consent, which seems to have been published because of Montgomery: which I find rather strange, because in my opinion, the same 'Informed Consent' and 'Supported Decision-Making' which Montgomery made clear is the law in Scotland, was clearly present inside our Mental Capacity Act (section 3 and section 25(4)(c)). So I'm puzzled why doctors in England, needed a case from Scotland, to point them at what I can clearly see inside the MCA. You can find the Montgomery ruling at:

https://www.supremecourt.uk/decided-cases/docs/UKSC_2013_0136_Judgment.pdf

There are other court cases, which 'explain' the MCA, but which do not seem to be given the publicity of the Montgomery ruling.

One, is a case ruled on by Mr Justice MacDonald:

The ruling can be found at:

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCOP/2015/80.html&query=court+and+of+and+Protection+and+Justice+and+MacDonald+and+sparkle&method=boolean

The ruling explains the law in its first two sentences:

'A capacitous individual is entitled to decide whether or not to accept medical treatment. The right to refuse treatment extends to declining treatment that would, if administered, save the life of the patient.'

And my comments on the ruling can be found at:

http://www.bmj.com/content/351/bmj.h6575/rr-0

That ruling makes essentially the same point as the Montgomery ruling - that unless a patient is mentally-incapable, the role of doctors in decision-making is to decide which treatments to offer (assuming cost and expertise were no object, I feel sure that would amount to 'to offer all of the treatments which might have some clinical effectiveness, and to describe the likely clinical outcomes of each of the treatments') and the patient then decides which, if any, of the options to accept.

An even clearer example of this patient self-determination, can be found in a story a Court of Protection out-of-hours duty judge, Sir Mark Hedley, told to a newspaper - I gave the details in my piece:

http://www.bmj.com/content/350/bmj.h2883/rr-2

In essence, the judge told some hospital doctors that they could not legally treat a suicidal patient against the patient's wishes. As I explained in the above piece:

'There was a report in The Independent (newspaper), June 24th 2013 (carried on pages 1, 6 and 7), when Sir Mark Hedley, a recently-retired judge, explained that 'I decided at 10pm that a suicidal man with mental health problems could be allowed to die of an overdose rather than order doctors to pump his stomach ... I decided he had capacity [to refuse treatment], so he died that night. That's exactly what he wanted to do... That one never found its way into any report of any sort'.'

There is an even more interesting piece by Mr Justice Hayden, which is not apparently widely read - and it should be widely read, because it makes some fundamental points. The piece can be found at:

http://www.bailii.org/ew/cases/EWCOP/2014/4.html

The patient was in a minimally conscious state and the section of real interest is this one:

53. If ever a court heard a holistic account of a man's character, life, talents and priorities it s this court in this case. Each of the witnesses has contributed to the overall picture and I include in that the treating clinicians, whose view of TH seems to me to accord very much with that communicated by his friends. I am left in no doubt at all that TH would wish to determine what remains of his life in his own way not least because that is the strategy he has always both expressed and adopted. I have no doubt that he would wish to leave the hospital and go to the home of his ex-wife and his mate's Spud and end his days quietly there and with dignity as he sees it. Privacy, personal autonomy and dignity have not only been features of TH's life, they have been the creed by which he has lived it. He may not have prepared a document that complies with the criteria of section 24, giving advance directions to refuse treatment but he has in so many oblique and tangential ways over so many years communicated his views so uncompromisingly and indeed bluntly that none of his friends are left in any doubt what he would want in his present situation. I have given this judgment at this stage so that I can record my findings in relation to TH's views. Mr Spencer on behalf of the Trust does not argue against this analysis, he agrees that nobody having listened to the evidence in this case could be in any real doubt what TH would want.

What is so significant in there, is two things.

The first, is that I have always argued that section 4(6) of the MCA allows people who DO KNOW the patient as an individual, to use that 'life experience of the patient' when considering section 4(6). Some doctors - for example, Claud Regnard a few years ago, when we argued about this - disagree: some doctors do not consider that 'those close to the patient' are the people who are best-equipped to consider this section of the MCA:

4(6) He must consider, so far as is reasonably ascertainable-
(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so.

Mr Justice Hayden asked the doctors to describe the clinical situation and the prognoses of the patient - but the judge clearly then asked the friends of the patient 'what would he decide, if he could decide, in this situation ?':

'... he has in so many oblique and tangential ways over so many years communicated his views so uncompromisingly and indeed bluntly that none of his friends are left in any doubt what he would want in his present situation.'

And second - this is quite deep, and is relevant to understanding why some Advance Decisions are required to be written - that sentence started with:

'He may not have prepared a document that complies with the criteria of section 24, giving advance directions to refuse treatment but [he has in so many oblique and tangential ways over so many years communicated his views so uncompromisingly and indeed bluntly that none of his friends are left in any doubt what he would want in his present situation].

Mr justice Hayden, is writing about Advance Decisions (section 24) and best-interests decision-making, in the same sentence: in fact, it is one or the other according to the MCA, but the judge clearly thinks the patient's friends understand what an Advance Decision would have said, if there had been one - 'none of his friends are left in any doubt what he would want in his present situation'.

There are rules in sections 24-26 of the MCA, about Advance Decisions: advance decisions are instructions from a patient which were issued when the patient was mentally-capable, and which must be followed if the patient loses mental capacity. The law only allows for a REFUSAL of a possible treatment to be covered by an Advance Decision. The law also states that to be valid for a refusal of a life-sustaining treatment, such as cardiopulmonary resuscitation, the Advance Decision must be written.

I am very annoyed indeed, by the way many clinicians interpret that requirement: in my view, as we started with 'the patient has a legal right to refuse any treatment' and because advance decisions are to project your refusal forwards, we must understand that the reason a refusal of something such as CPR 'must be written' is because if the written ADRT is first inspected during an 'emergency', the law intends that its instruction must be followed if it is PRIMA FACIE valid and applicable. If I write an Advance Decision refusing CPR, I know that if I'm found in arrest, I will not be able to talk to people such as 999 paramedics - my ADRT is written and witnessed, precisely because it should then be respected by the paramedics. But 999 paramedics seem to think they are supposed to check whether the witness signature(s) is genuine, which of course is impossible in an emergency - so 999 paramedics make the creation of such Advance Decisions pointless.

And IF I CAN TALK TO THE CLINICIANS, then I can verbally refuse a life-sustaining treatment without also writing it down, provided those clinicians do not leave my presence before the treatment would become necessary: if I make it clear that I am forbidding any blood transfusion, and a few minutes later loss of blood makes me lapse into unconsciousness, there is not a legal right for the clinicians 'to pounce on me and ignore my refusal of a blood transfusion' [which is surely 'assaulting me simply because I'm not in a position to defend myself'].

What Mr Justice Hayden seemed to be 'getting at', with his ' He may not have prepared a document that complies with the criteria of section 24, giving advance directions to refuse treatment but ...' words, is that what matters is being sure you understand the patient's decision. And you cannot ask a written ADRT, if the patient is unconscious, 'can you please explain that bit better, I don't think I understand it' - but, during a conversation with a patient, you can 'check with the patient, that you understand his refusal'. Quick note: you need to understand what treatment or intervention the patient is refusing, and whether the patient intended to refuse the treatment in the current situation - you do NOT NEED to 'understand why the patient decided to refuse the treatment'.

I analyse this 'verbal refusals of life-sustaining treatment are 100% legally-binding during situations of ongoing contact' at length, elsewhere.

There is one further court ruling, which makes clear exactly why it is so difficult to 'clearly explain what best-interests decisions are founded on'. In general, the court rulings in this piece make it clear that:

1) Following the autonomy of a mentally-capable patient is the simplest thing to understand and to do;

2) Following the patient's autonomy projected forwards into future mental incapacity which the patient had considered is the next easiest thing to do;

3) Making a best-interests decision is so complicated, it should be avoided if it is possible to do either 1 or 2 instead.

A court case which illustrates 3), is one by Mr Justice Jackson which can be found at:

http://www.bailii.org/ew/cases/EWCOP/2015/60.html

In it, Mr Justice Peter Jackson ruled that a mentally-incapable patient with a gangrenous foot, who was strongly resistant to its amputation, must not have the operation unless he changed his mind and stopped objecting to the amputation. Without the operation, the patient would inevitably die quite quickly.

Mr Justice Jackson ruled that the operation would not be in the patient's best interests - in other words, that it was in the patient's best interests to allow him to die from his gangrenous foot, instead of allowing the amputation to take place.

So it isn't the case that best-interests is about 'keeping mentally-incapable people safe and healthy' - it is much more complicate than that, because Mr justice Jackson was applying section 4 of the MCA, and he decided that, to use my phrase, 'it was better for the patient to be allowed to die, rather than to force him to have his foot amputated, and for the patient to then face an uncertain future which the patient strongly objected to'. So there is a very-difficult-to-describe balance, between the aim of keeping the person 'safe and healthy' and 'respecting the person's experience of the life which the person is living, and would be living after the decision'.

Which is why I state that if at all possible, best-interests decision-making should be avoided (and remember that I usually write about end-of-life, and when the patient is still mentally-capable at the time of the terminal diagnosis: which is nothing like being involved with a person who is mentally-incapable for many years, when best-interests decision-making usually cannot be avoided).

I would be very pleased, if some people who work with patients when it isn't possible to avoid best-interests decision-making - for example with mentally-impaired adults, or with people who have suffered from serious dementia for many years - would post some views. In particular, I would be interested in understanding whether anybody can explain the best-interests decision made by Mr Justice Peter Jackson, using 'simple and accessible lay-language'. That strikes me as being a fundamental complication with the MCA - that best-interests decisions which have serious and life-changing or life-ending consequences for the patient, must really take into account what I will call 'the patient's experience of life following the decision': and whereas judges like Mr Justice Jackson will 'make very difficult calls', it seems to me that almost all clinicians and social care staff are much more likely to 'opt for safeguarding' [it is easy to see why they do this - the point is, it isn't a correct interpretation of the MCA].

As Mike Hostick recently put the basic point (I am aware that self-determination is not actually a right if you lack mental capacity - which is why I was not mentioning self-determination when discussing Mr Justice Jackson's ruling) in a discussion on Nursing Times:

'I would extend the comment on 'soft medical paternalism' to a wider spectrum and that the majority of staff would choose to protect the person first and their right to self determination second despite what the law says.'

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mike stone 22/12/16

Hugh Constant has very kindly provided me with a link to the full ruling of the 'Briggs' court case - this is another ruling, which 'makes clearer' certain issues.

It is a long ruling [and probably being appealed] and it will take me some time to read it through properly (I've already found one section, while just glancing at parts of the ruling, which I am doubtful about) - however, this section strikes me as being correct [certainly in the case of 'minimal consciousness' which applies for Mr Briggs] and 'very helpful':

'45 Before any of these matters can be taken into account they must be "reasonably ascertainable" and the influence of Mr Briggs' beliefs and values is to be assessed on the premise that he had capacity now and, in my view, the influence of the other factors he would be likely to consider is assessed if he were able to do so now, and so on the same basis.'

Section 62ii) is almost exactly what I wrote in the file which can be downloaded from here:

http://www.dignityincare.org.uk/Discuss_and_debate/Discussion_forum/?obj=viewThread&threadID=741&forumID=45

I wrote on page W4 of my PDF:

'The next layer of decision making, is when the patient has not told you his decision, or he is unable to tell you and he had not left a written ADRT for you to read: in this situation any person making a decision should try to comply with section 4 of the MCA. First you must attempt to retain the individuality of the patient - you must attempt to discover, to an acceptable degree of certainty (as opposed to the 'knowing the decision' of the above two), the decision the individual patient would have made, had he been able to make the decision himself.'


Section 62ii) of the Briggs ruling is:

62 But, in my view when the magnetic factors engage the fundamental and intensely personal competing principles of the sanctity of life and of self-determination which an individual with capacity can lawfully resolve and determine by giving or refusing consent to available treatment regimes:

ii) if the decision that P would have made, and so their wishes on such an intensely personal issue can be ascertained with sufficient certainty it should generally prevail over the very strong presumption in favour of preserving life.

The Briggs ruling can be downloaded as a PDF at:

https://www.judiciary.gov.uk/wp-content/uploads/2016/12/l-briggs-v-p-briggs-others.pdf

I will read through the entire ruling, and I will almost certainly comment further.

mike stone 30/01/17

There is another court case - sorry I don't have the full ruling, only a link to a report by the Daily Telegraph:

http://www.telegraph.co.uk/news/health/news/9464498/Judge-rules-that-doctors-can-withhold-treatment-in-desperately-sad-case.html

The case was in 2012, and it concerned a 42 years old man who had learning difficulties, a genetic disorder and diabetes brought on by his obesity. He had a fear of injections, and was strongly resisting his insulin injections. The article tells us:

'Bridget Dolan, for the NHS trust, said the patient had learning difficulties, a genetic disorder and multiple physical difficulties including diabetes and bed sores brought on by his obesity. Doctors said he was in the "pre-terminal phase" of multi-organ dysfunction.
His understanding of his situation is limited and he physically resists attempts by doctors to examine or treat him, not least because he also has a needle phobia.
"It has been 11 weeks since somebody has been able to take blood," she told the court.
"His compliance with nursing care to dress wounds is very limited and sporadic."'

We were told that he could have lived for another two years with insulin injections and other treatment, but that without the injections he would probably die within weeks or months. The judge, Mrs Justice Pauffley, ruled:

'The judge made an order that it would be lawful and in the patient's best interests for his clinicians "not to provide" any assessments and treatments where they "cannot be delivered without the use of physical force" after attempts have been made by doctors and his mother to persuade him.
Instead the man should be given "palliative treatment and care" to ensure he "suffers the least discomfort and retains the greatest dignity until such time as his life comes to an end".'

I wish I had the full ruling for this case, but based on the report by the Daily Telegraph this ruling is centred on a different point from some others: he clearly couldn't understand the consequences of his refusal of life-sustaining treatment, but to use my phrase 'his engagement with life' was at a relatively high level - his experience of life, would have, again to use my phrase, 'been made intolerably unpleasant by the treatment itself, if the treatment which would extend his life had been forced on him', and this seems to have been the justification for not forcing the treatment on him.

This does seem to be at the heart of section 4 of the MCA - in a 'very hard to define in a simple way' sense, 'the patient's own experience of the consequences of the best-interests decision' sits at the very centre of the best-interests concept. I tend to write about that using phrases such as 'the patient's individuality'.

mike stone 18/02/17

I have been trying to harvest views on a scenario - the Anne, David and Dr Jones scenario - on the National Mental Capacity Forum's new discussion section. You need to join the forum to get access, although joining is pretty easy (you just need to give a few details and an e-mail address). The scenario is at the link below, and if you are not logged-in to NMCF it will take you to a page which has the link for joining on it:

http://nmcforum.ning.com/discussions/the-anne-david-and-dr-jones-scenario-who-is-deciding-what-in-this

I explained why I posed the scenario and my questions, and my own answers to my questions, earlier this week on NMCF, and I have just added the following.

****************************************************
My 'Anne, David and Dr Jones' scenario is asking for opinions about what the law says: it is not typical of the scenarios I come across in training material about the MCA, despite its simple and self-contained nature, but there is something very 'awkward' about even statutory law such as the MCA. It can be illustrated, by pointing to the Montgomery ruling (one court case which has definitely caught the attention of clinicians).

There is something rather paradoxical, about court rulings such as Montgomery.

I read the MCA several years before I first heard of 'Bolam'. In all honesty, I was astounded when I came across Bolam - Bolam struck me as both offensive and also bonkers. When I read the MCA, it seemed to describe genuine Informed Consent as the rule for capacitous patients - and the idea of 'non-genuine' informed consent (which is what Bolam amounted to) would in any event have seemed absurd to me. My degrees are in chemistry.

But medical doctors would have been reading the MCA when I first read it (2009) and 'overlaying' both Bolam and 'medical paternalism' (and the two are linked) onto the Act.

It could be argued, that if Bolam was the law in 2009, that the MCA does/did not describe genuine informed consent - if that were true, then it significantly complicates/complicated any coherent interpretation of the MCA. Personally, I can't see how the argument can stand up when section 25(4) of the MCA appears to only be consistent with [genuine] Informed Consent - but it seems many medics did not agree with me.

In March of 2015, we had the Supreme Court's Montgomery ruling. It is worth reading sections 107 and 108 of Montgomery:

107. In the third (2010) edition of their leading work on Principles of Medical Law, Andrew Grubb, Judith Laing and Jean McHale confidently announced that a detailed analysis of the different speeches of the House of Lords in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 was no longer necessary. A combination of the 2008 Guidance provided by the General Medical Council, the decision of the Court of Appeal in Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P 53 and the decision of the House of Lords in Chester v Afshar [2005] 1 AC 134 meant that it could now be stated "with a reasonable degree of confidence" that the need for informed consent was firmly part of English law (para 8.70). This case has provided us with the opportunity, not only to confirm that confident statement, but also to make it clear that the same principles apply in Scotland.

108. It is now well recognised that the interest which the law of negligence protects is a person's interest in their own physical and psychiatric integrity, an important feature of which is their autonomy, their freedom to decide what shall and shall not be done with their body (the unwanted pregnancy cases are an example: see Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52, [2004] 1 AC 309). Thus, as Jonathan Herring puts it in Medical Law and Ethics (2012), 4th ed, p 170), "the issue is not whether enough information was given to ensure consent to the procedure, but whether there was enough information given so that the doctor was not acting negligently and giving due protection to the patient's right of autonomy".

Understandably, when Montgomery was being discussed on the BMJ website, some doctors were less than happy about the implication that they should be working out the law by reading somewhat arcane debate in medical textbooks. But look at 107, and in particular this:

' A combination of the 2008 Guidance provided by the General Medical Council, the decision of the Court of Appeal in Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P 53 and the decision of the House of Lords in Chester v Afshar [2005] 1 AC 134 meant that it could now be stated "with a reasonable degree of confidence" that the need for informed consent was firmly part of English law (para 8.70). This case has provided us with the opportunity, not only to confirm that confident statement, but also to make it clear that the same principles apply in Scotland'

The Supreme Court informed us, that a 2010 textbook, which argued that the combination of a 1999 court ruling, a 2005 court ruling and some 2008 GMC guidance, meant that 'genuine informed consent' was the law in England, was correct, and that Informed Consent was also the law in Scotland in October 1999 (when the events ruled on in Montgomery occurred).

Think about this - the Montgomery judges do not claim to have changed the law when they ruled in 2015: they assert that the law had been genuine informed consent since 1999 [at the latest]. So, Informed Consent was the law in England when the MCA was enacted - and Montgomery tells us it was still the law in 2010, after the MCA was enacted: so clearly the MCA must describe Informed Consent [and that the consent process is Supported Decision-Making - a logical consequence of Informed Consent].

So, go back to when I was reading the MCA in 2009, and claiming that it described Informed Consent, and when the consensus view of the medical profession reading the MCA in 2009, was that the MCA must be describing something other than Informed Consent. Presumably, even though I could not prove it in 2009, I was right and the medical establishment was wrong - you can use an f-word of your choice to describe this overall situation: frustrating or fascinating.


Sally-Ann Martin 20/02/17

Sometimes Mike, I think this all becomes far too complicated, because the medical and social care profession are dead scared of being taken to court for malpractice.
The basics seem to have been left behind. Compassion, kindness, understanding, and attending to the person's needs, beliefs, religions and culture.
The law is supposed to be a guideline, not a fear thrust down our throats because of a case that somebody won.
Otherwise, we might as all just walk out right now and leave the care profession.
AS long as we record everything, discuss everything with the relevant professionals and families, making decisions in someone's best interests doesn't scare me.
People don't live forever. Nature is cruel sometimes, thrusting some harsh diseases and abnormailities on some, that put them in incredible pain. To FORCE them to plod on against their best wishes and interests, is wrong.

Caroline Fennell 20/02/17

In the case with Mr Justice Peter Jackson was the Mental Capacity Act applied correctly by the medical professionals and his IMCA? In this situation whilst the patient was deemed by professionals to not have mental capacity it appeared that with regards to this decision he did.
When a patient makes a clear statement which they are able to repeat each time they are questioned on the same point surely they are then within their rights to have that statement respected as would you or I. He was aware that the operation would save his life and that without it he would die but felt that he would rather die than continue with the life he had.
He was able to, in this circumstance, pass the test for mental capacity. I can't help feeling the entire case brought because Clinician were not following the principle of the Mental Capacity Act (People have the right to make what others might regard an unwise or eccentric decision) or perhaps were afraid of the consequences if this case was not tested in court.


mike stone 14/06/17

Only just noticed the two responses from Sally-Anne and Caroline. Not sure why I missed them for so long - I'm a bit annoyed that I hadn't spotted them.

Anyway, now I HAVE noticed them.

I agree with Sally-Anne's comments - in particular that the professionals tend towards 'safeguarding themselves' instead of concentrating on the MCA's emphasis on the person/patient as an individual (an emphasis which I think could be summed-up as 'your decision-making must be strongly guided by the impact which your decision would have on the future life of the patient, viewed from the perspective of how the patient will experience that future life'.

Caroline has moved into a very difficult area: no, the patient did not demonstrate mental capacity over the decision [or else Mr Justice Jackson would have decided that he could not make a best-interests ruling]. The only way that I can express the decision, is to point at what I've just written: Mr Justice Jackson put his conclusions about 'the way the patient would experience his future life' uppermost when he was making the decision. The professionals often seem to seek a court ruling because they are 'nervous to just apply the MCA when the decision looks as if it might be 'contentious': but when I try to decipher the MCA - and I am coming from end-of-life - I simply can't accept that routinely appealing for court rulings is anything other than bonkers and unsatisfactory!

Sorry for not 'getting back to you' earlier!

mike stone 23/09/17

There is a recent court ruling by Mr Justice Jackson:

http://www.bailii.org/ew/cases/EWCOP/2017/19.html

which, from my perspective, is useful in that it continues a recent trend by judges to stress an 'approach' that our law 'is now what is INSIDE the Mental Capacity Act'. The judge decided that a Court of Protection Practice Directive had to be discarded, because, to use my phrase 'the directive is inconsistent with the MCA itself'.

Celia and Jenny Kitzinger have written a paper which argued against that CoP Practice Directive, and although in a sense that 'thrust' is now obsolete, there is still a lot to commend the paper to readers. I will not explain here what, because yesterday evening I wrote a PDF about the Kitzinger paper, which I have attached here.

There is only one 'implication' in the Kitzinger paper, which I dislike: the non-contesting of the idea that 'best-interests decisions' are made by clinicians, and are only contributed to by family and friends - I analyse that in my PDF.

And, the Kitzinger paper forcefully makes the point, about how hard it is for relatives to 'conclude that my loved one would prefer death, to continued life in the present situation'. However, what that paper did not include in its analysis, was the obvious paradox around 'detachment' during best-interests decision-making: while clinicians are 'detached' and by contrast family and friends are 'attached to' their loved ones, which introduces an extra 'emotional burden' if family and friends are making best-interests decisions, it is that very attachment which gives the family and friends an added insight into section 4(6) of the MCA, which the 'detached clinicians' do not possess. Put simply 'the MCA has made best-interests determinations dependent upon the individuality of the person, and it is the family and friends who are 'attached to' the person who better-understand that individuality'.

I'm considering writing this 'attached/detached' issue up properly - it is a logical continuation of my PDF attached here - as a piece 'Mike's Cheeky Blog; It's the MCA, stupid!'.

Associated files and links: