Intended for healthcare professionals

Rapid response to:


When mental capacity becomes an issue in medical practice

BMJ 2016; 352 doi: (Published 20 January 2016) Cite this as: BMJ 2016;352:i222

Rapid Response:

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

30 January 2016
Michael H Stone
Retired Non Clinical
None Private Individual
Coventry CV2 4HN