Section 2 of the Mental Capacity Act should be unnecessary
Section 2 of the Mental Capacity Act should be unnecessary
I had never considered section 2(1) of the MCA as being of any significance – to me, all it is saying, is that thinking, whether perfect, flawed or indifferent, takes place within the brain. But some lawyers have told me that they consider section 2 to be fundamental to the MCA – one of the lawyers wrote:
‘Basically, if you remove the diagnostic threshold, you MASSIVELY expand the scope of the MCA, to include huge chunks of the population, without any kind of recognised mental disability at all, in ways that the public would probably have strong views about.’
So, I’ve been thinking about this, and the PDF you can download is the analysis I’ve come up with.
Often, the lack of mental capacity to make a decision, will arise because of something such as a psychotic mental condition – and, of course, we regard psychiatrists as the experts in such things. But – IMPORTANTLY – the requirement of the MCA is not ‘does the person have a psychiatric diagnosis?’. The requirement of the MCA is, in such a situation, ‘does the person’s psychiatric diagnosis result in the person being unable to make a particular decision for themselves?’. As I pointed out in the PDF, on page 3:
‘If you consider and assert that a person lacks the mental capacity to make a decision, then you need to justify why you believe that. It is possible that you might involve a psychiatrist. But, you don’t – or at least should not – ask the psychiatrist ‘do you consider the person has got a psychiatric diagnosis?’. You ask the psychiatrist ‘do you consider the person lacks the mental capacity to make the decision?’.
That question, points the psychiatrist back into considering section 3(1) of the MCA. And, it is not the psychiatrist who needs to believe and justify a conclusion that the person lacks the mental capacity to make the decision: it is you, because the reason why you are considering the person’s mental capacity, is that you are involved in the situation in such a way that you might need to call on the defences provided by the MCA if you intervene [or decide to not intervene] without the person’s consent.’
As I pointed out at the end of my PDF:
‘It makes it clearer, if we re-present section 3(1) as:
3(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable—
(a) to understand the options and outcomes of the decision,
(b) to retain the options and outcomes,
(c) to think about the options and outcomes as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
Two things which [individually] can point towards an assessment that the person is not mentally capable to make the decision:
The option which the person has chosen, does not fit with the person’s known objective;
The person does not accept ‘empirically proven’ outcomes of options.
And, this is also something which can be relevant:
An unshakeable belief which is inconsistent with empirical experience of the world.
And, developing something I wrote on pages 9 and 10, I am asserting that:
If we can apply the ‘functional test’ of 3(1) correctly, then that will automatically connect our conclusions about capacity and incapacity to the actual decision being considered in a way which is NOT true for a ‘psychiatric diagnosis’. And, as we investigate both 3(1) and also psychiatric conditions by means of the same tools - observation, listening, asking questions and [if the questions are answered] listening to answers – then it is a plausible ‘Ansätz’ to suggest that if we can refine how we apply a functional test, then we do not need to subsequently also apply a ‘diagnostic test’ when we use the same tools, and gather the same ‘evidence’, for both of those tests.’
As usual, feedback on the PDF is very welcome.
Associated files and links:
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Section 2 of the Mental Capacity Act should be unnecessary
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This is very interesting.
My experience has been that the MCA is used for the benefit of those who gain benefit from applying it rather than the patient. This is particularly when you are trying to gain information from a care provider, NHS, GP, etc and they insist that the patient has capacity when they very clearly don't based on Sec 3(1) of the Act and as a result, refuse to share vital information to families who are advocating.
There has also been the suggestion that unless a DoLS is in place, mental capacity is only relevant at a time you are asking a question of a patient. This is despite the clear evidence that mental capacity is on a reducing trajectory rather than fluctuating with significant periods of lucidity.
Using an LPA is, as a consequence, very difficult to use when it comes to Health and Wellbeing and the donor cannot opt for an advocate/attorney, to act in their best interest if they choose.
Care providers, are always looking to minimise their acceptance of a patients non mental capacity and use it to say that "Mr/Mrs X understands" even when they clearly don't.
Thank you Charlie. As it happens, I found it interesting - and challenging - to write that piece [which, despite having been thinking about the MCA for about 15 years, wasn't anything I had previously thought about in any depth].
Many years ago, during some discussions on Nursing Times [online], someone who did MCA teaching pointed out (I think this is 'well known') that when professionals apply the MCA they 'safeguard the incapacitous person' much more than they would 'safeguard' themselves, in that treatments are often applied 'which I wouldn't want for myself'.
I also know a social worker, who used to get very angry with professionals who were asserting that a person had the capacity to make his/her own decision, and therefore 'were not getting involved', when it seemed clear that the person lacked the capacity to make it.
The MCA is conceptually correct, to state that 'capacity can fluctuate' and also to point out that what is relevant to the making of a decision, is whether the person has capacity to make the decision at the time the decision is being made. And you are right to point out that often 'mental capacity is on a reducing trajectory rather than fluctuating with significant periods of lucidity'. In fact, there isn't a contradiction there - for some people capacity might fluctuate, while for others it might 'steadily decline'. Fluctuating capacity is, I've read, one of the most awkward things for professionals to correctly address.
I'm pleased you found my piece interesting, and thank you for your comments.
Sorry to be posting so long aftre your original post Mike. One of the things that was raised in our recent web event on this very topic was the use of a 'letter of wishes'. This is where the individual records the detail of what may be very briefly covered in an living will, or ReSpect form. What the letter of wishes does is gives guidance, so for example, it may say in the living will or ReSpect form 'do not resuscitate' but what the person actually means is 'if its a quick CPR and I'm back then do it; but if its breaking my ribs, spending lots of time trying and i will have no quality of life afterwards don't bother'. Everyone at the event thought that this should be more widely broadcast so that these wishes, can be ustilised by anyone with a LPA or advocating for an individual is able to do so knowing they are operating according to the persons wishes. [obviously wishes may change but that can be addressed as it happens]
Hi Liz,
I don't think discussions have got an end date? I'm happy for comments at any time, myself!
Ah - just realised it was Carlie, not Charlie! Apologies Carlie. It was Carlie Mayes who raised the problems with LPAs, which wasn't what my PDF is about, but which IS interesting and significant. I often write that Advance Decisions often will not work 'in emergencies', and I am also aware that Attorneys under an LPA quite often run into problems: it should be simple
'If the person cannot decide for him/herself and the person has appointed an Attorney in order to make the decision, then doctors, nurses and other professionals should see their role as being to help the attorney to make and express the decision'.
That should be all there is to it!
As for things such as statements of wishes, those invoke MCA best-interests decision-making, and the mindset we need there is 'EVERYONE involved should be getting their heads together to see if everyone agrees about what the best-interests decision should be'. NOT 'the family and friends are helping the clinicians to make the best-interests decision' - it should be 'Everyone talks together, and we see if everyone agrees about what would be in the person's best interests'. I don't have time to analyse MCA Best Interests at the moment.
I analysed MCA Best Interests in my piece at
Thanks Mike, I'll have a re -read through. However the letter of wishes as discussed in our web event was something that could be wirtten at any point in someone's life and was there to guide the LPA in their decision making. I think even when someone has variable of limited capacity it is possible to get a feel for what they would want at a point in time, and it should always be the person themselves that is in charge of the decision making. It would really only be if someone was unconscious or otherwise incapable of indicating their wishes thatwe should get into best interests. If you have time have a look at the recording of the web event and the section for 2p.m. onwards {the second speaker Fiona] its on the website.
Liz
Hi Liz,
I'm only online when I'm in a public library. I've managed to watch part of your video - from the slides about the ReSPECT form to about the question about next-of-kin answered by Fiona.
I've only got time for some quick comments. I would be interested to know why Fiona kept saying 'advance directive' - it should be 'advance decision' in England & Wales [because that is the term the MCA uses in sections 24-26 where the Act sets out the legal requirements for an ADRT - to put it simply 'advance directive is a concept, and in England & Wales the legal-implementation of that concept is an Advance Decision to Refuse Treatment']. And I'm wondering if Fiona would agree with me, re MCA Best Interests:
Fiona was 100% right about appointing your attorneys with Joint & Several authority, which I think is essential if you want attorneys to make decisions during 'emergency situations'.
As for the ReSPECT form: I intensely dislike it, and much prefer what Wales has done - Wales has got a better-thought-out system [around end-of-life in particular] and Wales uses a greater range of forms, which can then be made to fit particular situations more appropriately.
Which brings me to something I heard - that you need different ReSPECT forms for home and hospital. I haven't looked at the ReSPECT website recently, but that runs entirely counter to the original intention of the ReSPECT form: the form was supposed to be ABOUT THE PERSON so the location shouldn't matter. The form might need to be altered in the light of a hospital admission, because 'something might have changed' - but I think 'I've ended up with 6 ReSPECT forms' cannot be helpful [and I'm not sure that is in fact correct - and as some places are replacing DNACPR forms with ReSPECT forms (which is a bad idea, and which runs counter to what ReSPECT historically stated about their form) that might indicate that hospital and community clinicians are in fact using the ReSPECT form incorrectly).
I don't have the time to comment further at the moment - I'll see if I can watch some more of the video, and I might comment further.
To elaborate a little on my preference for what Wales has done, compared to ReSPECT.
Taubert and Bounds have explained what Wales has been doing in a paper which you can find at:
https://spcare.bmj.com/content/14/e1/e608
Or you can download the attached PDF which is the paper. I should disclose in the interests of transparency, that Mark Taubert and I have often swapped e-mails about EoL/MCA/CPR.
If you read the paper, you will see that its CONCLUSION is:
'Advance and future care planning is a complex topic area for healthcare professionals, patients, carers and policymakers alike. It is not likely that a ‘one-size fits all’ approach will ever meet the different needs of the population, and so different forms and approaches are offered in Wales. In fact, many people may still decide not to engage with advance care planning conversations, as they may find the mere thought of preparing for the end of life too troubling. However, the approach and vision in NHS Wales is to offer (and never force) different approaches and formats to individuals and invest in ongoing education and awareness, with open-access policies, guidelines and strategy approaches that are open to scrutiny and reviewed regularly. This approach is backed up by the extensive patient and carer feedback and data that have been collected over several years, including as part of a national conference. It includes guidance on how to future care plan with individuals who have diminished decisional capacity and where best interests approaches are required. Importantly, it encourages explanation and shared understanding of procedures such as CPR and why a DNACPR discussion and document may be important. It seeks involvement with patients and their significant others on these decisions, not shying away from areas that traditionally may have been considered as taboo or too difficult. Next steps involve getting a central electronic repository for these forms, which is readily accessible to all relevant care providers, but also has an option for patients to contribute a bespoke care plan into their health record.'
If you read the paper, you will find that the paper 'explains' the law much better than ReSPECT or the ReSPECT form does - the ReSPECT form does NOT 'impart a correct understanding of the Mental Capacity Act' to its readers, nor a correct understanding of 'who-can-do-and-decide-what' from a legal perspective. I would also like to know exactly what ReSPECT means by 'clinical decision-making' and how that fits in with England's law around 'consent'.
ReSPECT is trying to push the ReSPECT form onto Wales - in my opinion it would be MUCH better if England scrapped ReSPECT and adopted a version of what Wales has developed.
I'm very vexed by the ReSPECT form, as readers might have spotted! If any experts on ReSPECT are reading this (Liz?), I would appreciate an answer to a question: if a mentally-capacitous patient says 'I do not want a ReSPECT form to be created, and I forbid it', then while the patient remains capacitous, does that mean a ReSPECT form cannot be created [or, if already existing, remain in existence?]?
Associated files and links:
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Taubert and Bounds FCP paper
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