When mental capacity becomes an issue in medical practice
BMJ 2016; 352 doi: https://doi.org/10.1136/bmj.i222 (Published 20 January 2016) Cite this as: BMJ 2016;352:i222
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I was interested to read Dr Danbury’s thought provoking editorial on mental capacity in medical practice. I very much agree with his endorsement of the BMA and Law Society guide, and also with the focus on open discussion and mediation where misalignment of views occurs between patients, relatives and healthcare professionals. However, there are a number of points which may benefit from some further clarification.
Firstly, the premise of the title question is problematic. Whilst starting with an assumption of capacity, arguably almost any medical encounter involves or should involve some consideration of the patient’s capacity, whether in terms of ability to consent to physical examination, investigations or treatment, or to participate effectively in discussion about management.
The Mental Capacity Act 2005 requires that, ‘A person must be assumed to have capacity unless it is established that he lacks capacity’ (1) and the Mental Capacity Act 2005 Code of Practice clearly explains the circumstances in which we should consider whether a person may lack capacity: (2)
• the person’s behaviour or circumstances cause doubt as to whether they have the capacity to make a decision
• somebody else says they are concerned about the person’s capacity, or
• the person has previously been diagnosed with an impairment or disturbance that affects the way their mind or brain works and it has already been shown they lack capacity to make other decisions in their life.
Although there is some evidence to suggest that medical professionals may be less inclined to follow patients’ wishes when they disagree with them, (3) this cannot be an acceptable approach to decisions about capacity; as is well established in common law, (4) the Act warns specifically against equating ‘unwise’ decisions, that is those not aligned with medical opinion, with incapacity. (1,2) Similarly, patients’ or their loved ones’ ‘agreement’ or otherwise with a course of action really should have no part in capacity assessment. Indeed, use of passive assent as a proxy for informed consent has led to significant legal difficulties in a related area of medicine, that of detention of incapacitated patients. (4)
Whilst in situations where views of patients and families appear to be coloured by misinformation or misunderstanding it would clearly be the duty of caring professionals to make every effort to clarify matters, the implication that ‘best interests’ might be referred to where patients or relatives disagree with a course of action favoured by the clinical team is concerning. ‘Best interests’ should have little to do with paternalism. The principle, rather than referring to what is ‘for the good of the patient’, intends that, when making decisions for or affecting people lacking capacity, every effort should be made to ensure that each decision is as close as possible to how the person would have made it had he retained capacity. The Act sets out clearly the way in which best interests should be established, (1) including taking account of the person’s past and present wishes and feelings, beliefs and values likely to have influenced his decision, and other factors likely to be considered. In addition, the Act requires that the views of those caring for the person or interested in his welfare should be sought; (1) with this in mind, it is perhaps not surprising that the courts have tended to prefer the testimony of relatives in forming a view of the best interests of patients.
Finally, reference to Kings College Hospital NHS Foundation Trust v C (6) may be useful in that it gives a clear review of the law on capacity. However, the suggestion that this decision has anything to do with deferring to patients is I think a misleading one. This case concerned a patient’s capacity to consent, and specifically her capacity to refuse a medical treatment. Since the court held her to have capacity to make the relevant decision, the doctors in this case were of course required to follow her wishes. The issue here was not that medical staff should have deferred to her wishes, but that her capacity should have been correctly assessed and not influenced by the assessors’ views on what constituted the ‘sensible’ decision for her to make.
1. Mental Capacity Act 2005 ss. 1(1), 1(5), 4(6), 4(7)
2. Department for Constitutional Affairs. Mental Capacity Act 2005: Code of Practice. London: TSO, 2007.
3. Orentlicher D. The illusion of patient choice in end-of-life decisions. JAMA
1992;267(15): 2101-2104
4. Re C (Adult: Refusal of Medical Treatment) [1994] 1 All ER 819
5. HL v United Kingdom (2004) 40 EHRR 761
6. Kings College Hospital NHS Foundation Trust v C and Anor [2015] EWCOP 80
Competing interests: No competing interests
Mental Capacity Act: the concepts of consent, representation and mediation disentangled
I first read the Mental Capacity Act in 2009. Between 2010 and the present, I have found it dismaying that my understanding of the Act, was not reflected in the writings of clinicians and other professionals. Since 2014 a series of court rulings have encouraged me, but possibly dismayed clinicians, because it seems to me that judges are now agreeing with my interpretation of the MCA. If the MCA were a painting, it would be inconsequential if it looked different to different viewers: but, that is not the case for a law as fundamental as the MCA.
The response by Benedict Hayhoe, seems to align with my understanding of the Act, but I am not sure that Dr Danbury's understanding is the same as mine.
I would like to 'unpick' this wording from the paper:
'Should we now defer to our patients and their representatives in all situations when there is disagreement? I do not believe so'.
We need to analyse the word 'representatives', and to define the circumstances of the disagreement. The MCA describes two situations: either a patient is mentally capable [with respect to the particular decision], in which case the patient considers clinical information provided by his clinicians, and then the patient makes and expresses a decision; or, the patient is not mentally-capable, and somebody else makes a best-interests decision. In both cases, as is logically obvious from that separation, the question of capacity has to be settled before the process moves on to the consideration of the decision. Danbury mentioned the recent ruling by Mr Justice MacDonald, which pointed out in very clear terms that 'mediation' does not apply if the patient is mentally capable, and that the patient alone makes the decision [whether or not to consent to offered treatment]. What 'so troubles clinicians' is the 'value-free' aspect of that - there is no assessment of whether the decision the patient makes 'is a good one', there is simply the decision that the patient is mentally capable [even if also self-destructive].
So, if the patient is mentally-capable, the answer to Danbury's question (above) is 'yes'.
What, if the patient lacks capacity, does 'representative' mean in Danbury's sentence above ? If by 'representative' Danbury means a Welfare Attorney or a Court Deputy whose decision-making authority extends over the decision being made, the Act is clear that the attorney or deputy is the decision maker (section 6(6) of the Act) and the decision must be followed unless an application to a court is being made (section 6(7)).
If there is not an attorney or deputy with the powers described in section 6(6) of the Act, then in my opinion the Act does not give any person decision-making authority: but, it does impose the duty to comply with section 4(9) on anyone who makes a decision. Section 42 somewhat complicates this, but only by allowing senior clinicians to lead the bahaviour of more junior clinicians (actually, section 42 is clearly potentially problematic in application).
Compliance with 4(9), requires that the guidance available from section 4 is applied by any decision maker: and, section 4(6) of the Act does not explain exactly 'what best interests means' but it does link the concept to 'the patient's individuality'. The people who understand the patient as an individual, are the patient's close family and friends - this is presumably why the COP 'increasingly prefers the relatives' view of best interests to those of the medical profession'. Danbury's phrasing there is interesting - 'the relatives' view(s) of best interests' - because I have always claimed that the relatives are indeed 'expressing best interests decisions' [which, however, cannot be imposed on others] while traditionally clinical authors have claimed that 'the relatives contribute information which the best-interests decision-maker then considers'.
If we adopt my position, that unless somebody is empowered by section 6(6) everyone should be contributing whatever they can to the formation of the best possible best-interests decision (clinicians contribute clinical prognoses, family and friends individually answer the crucial question of 'what would the patient have decided ?'), and with luck a unanimous decision emerges, then that unanimous decision is the one to be adopted by everyone. But, if there isn't unanimity, where does 'mediation' fit in ?
An honest consideration of section 4 of the Act, first requires a person to answer the question 'Am I sufficiently well-informed to properly consider section 4, and thereby to defensibly claim compliance with section 4(9) ?'. If the answer is no, you would not be involved in 'mediation' [about 'what is the best best-interests decision']. If the answer is 'yes', then your own best-interests decision is the one you must follow: that is obvious, from the wording of 4(9).
I want to keep within the word limit, and to comment on something else, so I'll leave the above without further elaboration: I wish to comment on Danbury's:
'It is also important not to appear to conflate best interests involving limitation of treatment with decisions about resource allocation'.
I believe it helpful, when thinking, to adopt two positions.
The first one, is that 'the MCA's concept of best interests, is based on optimising the outcome for the individual: the MCA 'supports selfish patients''.
The second, is that 'the NHS as a system, has to be 'fair for all'.
Putting that another way, very expensive treatments can legitimately be withheld because 'if we offered them to all, the NHS would quickly collapse' - but, while legitimate, such a decision is definitely not a 'best interests decision'.
Having a few of my thousand words left, I'll point something out. A welfare attorney or court deputy whose authority extends over the decision being considered, does not 'consent to the offered treatment': the attorney or deputy considers the outcomes of the offered treatment being applied or withheld, and expresses the decision as to which option (treat or withhold treatment) is in the patient's best interests. Nobody can consent to an offered treatment, when the patient lacks capacity.
And, mentally-capable patients do consent to an offered treatment: but they do not 'decide in their own best interests', capacitous patients 'just decide'.
Competing interests: No competing interests