Understanding and Teaching the Mental Capacity Act and In Memoriam Rachel Griffiths MBE

Mark and others in Wales have developed Future Care Planning, which doesn't require the patient to possess mental capacity. Historically planning was Advance Care Planning, and ACP by definition can only be done while the patient is mentally capable. So ACP, in Wales, is WITHIN FCP.

Would it be so very wrong - in fact, can it be clearly elaborated why it would be wrong at all - if we taught that when (see MCA 4(6)(a)) an incapacitous person does not have, or does not have any ascertainable, present wishes and feelings, that Best Interests becomes substituted judgement? To assert [for situations such as a cardiopulmonary arrest from capacity or a car crash which leaves a previously capacitous person in a deep coma], that just as FCP INCORPORATES ACP and that while the patient is capacitous the FCP PROCESS amounts to ACP, that in certain situations the best-interests PROCESS amounts to substituted judgement.

I don’t think it would be “very wrong” at all, and I think the objection to framing certain best-interests decisions as substituted judgement is more semantic than substantive.
Under the MCA, best interests is not a blank-slate, clinician-centric exercise. Section 4(6)(a) explicitly requires decision-makers to consider the person’s past and present wishes and feelings, values, and beliefs. Where those are known or reasonably ascertainable, best interests already functions as a proxy for the person’s own decision-making. In other words, it is already doing much of the work that substituted judgement is said to do.
The difficulty arises only when present wishes and feelings are absent or unascertainable for example, following a sudden loss of capacity due to cardiac arrest or traumatic brain injury in someone who was previously capacitous. In those cases, the MCA does not instruct us to abandon the person’s perspective; it instructs us to reconstruct it as far as possible from their prior values, beliefs, and life narrative. the proposed teaching does not undermine the MCA; it arguably makes its ethical structure more intelligible. Best interests is the legal container. Substituted judgement is one of the tools legitimately used within it when the conditions are met, just as ACP is one of the expressions of FCP when capacity is present.

I've just been reading the PDF and I made a mistake 'tween mind and finger: what irks me, is when people say 'I' when it should be 'me'. Not, as I wrote in the PDF, the other way around.

This isn't relevant to the discussion, but I'm 'irked' because I feel sure that people who say 'that is between him and I' or 'between he and I' would never say 'between we'. If you would say 'us' then it is 'me', and if you would say 'we' then it is 'I'.

Hi Eyitayo,

Thank you for your post. For some reason - probably that I was using a small tablet late in the evening when I posted my me/I correction - I have only just spotted your post, and I think we are both agreeing with each other.

I like your post so much, that I'll be pointing Lucy, Mark, Alex and Ben at it.

Again, thanks for your very-lucid post.

Hi again Eyitayo,

One of my clinical contacts, who I pointed at your post, has sent by e-mail:

Hi Mike

Eyitayo's comments is very good, in fact it helped me frame in my mind what I feel substituted judgment is (as you know a few days ago I was not certain I would have been able to give a particularly good definition, if asked to write an essay about SJ and the MCA in an exam).

So thanks for sharing. Won't gain me an LLB just yet, but who knows!

Thanks a lot.

In addition, lets look at differences briefly:
Substituted judgment - Focuses mainly on what the person would have decided if they had capacity.

MCA Best Interests - Looks at:
The person’s past and present wishes and feelings,
their beliefs and values
Views of family, carers, or advocates
All relevant circumstances
The least restrictive option

So, in practice:
Health professionals must not just decide what they think the person would choose.
They must follow the Best Interests checklist (Section 4 in MCA).

The person must be supported to participate as much as possible.
If serious medical treatment is involved and no family/friends are available, an IMCA (Independent Mental Capacity Advocate) must be involved.

In summary
Substituted judgment influences thinking, but under the MCA, decisions must legally be made using the Best Interests framework, not substituted judgment alone. Thank you ones again.

Thanks a lot.

In addition, lets look at differences briefly:
Substituted judgment - Focuses mainly on what the person would have decided if they had capacity.

MCA Best Interests - Looks at:
The person’s past and present wishes and feelings,
their beliefs and values
Views of family, carers, or advocates
All relevant circumstances
The least restrictive option

So, in practice:
Health professionals must not just decide what they think the person would choose.
They must follow the Best Interests checklist (Section 4 in MCA).

The person must be supported to participate as much as possible.
If serious medical treatment is involved and no family/friends are available, an IMCA (Independent Mental Capacity Advocate) must be involved.

In summary
Substituted judgment influences thinking, but under the MCA, decisions must legally be made using the Best Interests framework, not substituted judgment alone. Thank you ones again.

The PDF is the text of an e-mail I sent to the people I was discussing this issue of 'how can understanding and application of the Mental Capacity Act be improved at the front-line - so before things are being considered in a court. I had thought it would be the final PDF of this 'flurry' but a couple of days ago I had a thought, which did need to be written-up, and also while I was writing it up I read a paper which 'sort of fitted'. See the next post.

My 'new' thought, involves the consequences of section 6(6) being present in OUR law, in the context of how a law, to us my own inadequate phrase here, 'protects an incapacitous person against the views of other people being 'forced on them''. I'll simply point you at the PDF.

While writing the above up, I read a paper by Professor John Coggon, which [I think] fits with both the above, and also with something else which I've already been suggesting. That is a logical consequence of something I've been suggesting for about 5 years - that we should not regard 'those close to the patient' (family and friends) as supplying information which someone else considers when we are making best-interests determinations. We should consider family and friends as 'Experts in the patient as an individual', and that what they are feeding in is an EXPERT OPINION about 'what an incapacitous person would have decided'. In the same way that clinicians feed in expert opinion about treatment.

If we do/did that, then not only do we not need to struggle so much with the explanation of 'what needs to be considered' during section 4(6), but we can also benefit from 'the expert hunch' - the 'as an expert, this feels right to me, even though I can't quite explain why it does' in the context of 'the patient's individuality'.

Anyway, read the PDFs and make your own mind up.

I'm getting too old - clearly I can't count to four any more.

I thought I'd already added this one to the thread - it gives part of my answer to 'how we do improve things' and it should be read before you read 'MCA Best Interests: A Provocative Stance' - but I hadn't posted it, so I'm posting it here.

Apologies that this thread is rather messy: there is a lot 'in my head' and I was trying to 'get it on paper' quite quickly!

Again, thoughts on any of this, very welcome.

This is the cover e-mail which will accompany the PDF when I send the PDF to my contacts – when they get it the text will include bolds and italics, which DiC doesn’t allow [and sometimes when I paste in to DiC the text deformats] but I HOPE this will be comprehensible!

Hi Everyone,

See my PDF ‘The MCA Section 4 and Much More’.

I think John is wrong about whether regarding family and friends as experts changes the way Best Interests works – I cover it mingled with the issue of verbal refusals of CPR, and then I move on to the NMCF report.

It isn’t all that easy to compress what I wrote in the context of family/friends as experts, but on the assumption that you can fill-in the unspoken yourselves, the core of my argument is:

For me, a strong theme amounted to ‘the MCA is virtually impossible for a judge to actually apply’. Which I’ll express differently, as ‘reading sections 3 and 4 they look theoretically correct, but section 4 is formulated rather like a mathematical equation when we are told what the variables are, but not the multipliers’. So, it looks rather like

BI = a(F1) + b(F2) + c(F3) – d(F4) – e(F5) etc

with us being told the what the Fs are, but with no information about the a, b, c etc.
Which is right: the a, b, c etc are dependent on the person-as-an-individual.

However: what we are missing, is that only the people who know the person have any idea as to what a, b, c etc will be, and human experts do not limit themselves to applying that ‘equation’ when they think.

I once exchanged e-mails with a doctor, who on Radio 4 had said ‘I think the expert hunch is very scientific’. She admitted she had been wrong by return e-mail. What she meant was that experts have ‘hunches’ which are often well-founded and right, and stem from expertise – but the reason it is ‘a hunch’ or ‘intuition’ is, to put it simply, ‘you know it but you can’t explain why you know it’. So it isn’t scientific. I believe, it is subconscious pattern recognition. I think our minds evolved to process things in terms of pattern recognition. Look around you, and you seem to be seeing a huge amount of visual information: give most people even a fairly simple bit of maths to do under time pressure, and most people struggle, even though there isn’t much reasoning and information processing involved in the maths. We didn’t use maths, or even language, to decide which was the path to take to make it more likely that we wouldn’t encounter a tiger.

So, with the ‘clinical experts describe the options and outcomes’ then ‘experts in the patient as an individual’ tell us ‘what the patient would have chosen’ approach/mindset, the judge doesn’t need to try and perform that ‘balance-sheet exercise’ which even some judges have said isn’t helpful as an approach.

Moving on to the issue of verbal refusals of CPR.
The thing is, we often read in ‘guidance’ the phrase ‘is legally binding’. Which is misleading for CPR. Because we are not comparing the making of a best-interests decision in those ongoing-contact situations with a written, valid and applicable ADRT. We are comparing a written valid ADRT, in

an unconscious patient arrives, accompanied by a written ADRT refusing CPR which you have never seen before, and if you have not previously talked to that patient recently, then you are faced with pondering various uncertainties, not least 25(4)(c).

with best-interests decision making in

if you discuss CPR with a patient for 30 minutes, during which you make certain that the patient understands CPR and its clinical outcomes, and during which the patient makes it clear he is refusing CPR, and then before you walk away the patient arrests, you have no doubts that the patient has refused CPR in the situation.

The person considering the written ADRT decides whether to consider it applicable, and only having done that does ‘DNACPR become legally-binding’ – and the person in the situation without the written ADRT considers whether section 4 allows any legitimate justification for the attempting of CPR, should immediately conclude that it doesn’t, and having concluded that then ‘DNACPR becomes legally-binding’.

I stress, my objection is to the assertion that without a written ADRT, the decision must be made on best-interests grounds and therefore cannot be ‘legally binding’: I’m not arguing that a verbal refusal can be a valid ADRT.

I do agree that it is correct to argue that the law has now moved into section 4: but, I also argue that if we are trying to get doctors, nurses, family-carers, 999 paramedics and welfare attorneys to all apply the MCA correctly on the frontline, then it makes more sense to in essence just tell them ‘in this situation the patient has very-clearly told you his decision – you simply follow it’.

As for Lucy’s question, which perhaps came down in essence to how do I think we improve understanding and implementation of the MCA:
How do we change things?

I wrote a short JME blog piece

https://blogs.bmj.com/medical-ethics/2021/02/21/is-there-only-one-mental-capacity-act-or-are-there-two/

in 2021, and I ended it with this:

Clinicians are very influenced by ‘advance care planning’ – which is in essence not legally-binding, and does not appear to me to sufficiently-involve family-carers. The NHS ‘seems to prefer’ DNACPR forms (signed by doctors and not ‘legally binding’) as compared to written ADRTs (signed by the patient and ‘legally binding’). As a former EoL family-carer, I was informed by conversations: whereas 999 paramedics seem to be overly-influenced by what has been written down.
After a decade of involvement in EoL/MCA/CPR debate, I still find that when I read the Mental Capacity Act as a former family-carer, I seem to be seeing something very different from what clinicians see when they read the Act.
How can we achieve good and joined-up care for people who are dying at home, with relatives and clinicians working together to support patients, if relatives and the 999 Services cannot even agree on the law which should be guiding everyone’s behaviour?

I think we need ‘challenge from patients’.

Patients should demand to complete and sign the ‘my wishes’ sections on forms;

Patients should ask ‘If I’ve got an ADRT refusing CPR, why do we need one of your ‘advisory’ DNACPR forms – and why aren’t those things called CNACPR forms for clarity?’;

If a doctor says ‘We are having a meeting so that I can decide what is in your dad’s best interests’ then we should forcefully assert ‘No! We are all having a meeting to see if we all agree about what is in dad’s best interests’.

Etc.

When Mr Justice Charles in Briggs elaborated on HOW a best-interests decision can legitimately lead to the withdrawal of life-sustaining CANH, he said (Section 62ii) of the Briggs ruling):

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.

I’m currently ‘a bit vexed’ by a lawyer’s suggestion that I had argued that the Mental Capacity Act has not replaced previous ‘case law’, so I’ll suggest something here.

In my piece at:

https://www.dignityincare.org.uk/Discuss-and-debate/download/509/

while analysing MCA Best-Interests determinations, I wrote:

‘A doctor could make a best-interests determination, without any understanding of the patient as an individual, but not an individualised determination: it would have to be based on the concept of ‘the average patient’.’

An obvious question, arises from section 4(6) of the MCA – at least, in my mind. We know that if we are sufficiently certain ‘that the patient would have refused a life-sustaining intervention, the intervention should not be applied’. But the other end of that spectrum – when we have no understanding of the patient as an individual – doesn’t, or at least it is not obvious that it does, seem to be ‘a very strong presumption in favour of preserving life’. It seems to be ‘what ‘the average patient’ would have decided’.

There is a lot to unwrap, in ‘what the ‘average patient’ would have decided’ (especially within my wording 'the average patient'), BUT, an argument can be constructed, that the MCA has swept away the legal ‘presumption in favour of preserving life’.

Just a thought!