Paternalism is an understandable human instinct but nevertheless even 'soft paternalism' is a legal anachronism
Professor Oliver seems to me to be misrepresenting my position: I am not asserting that appealing to law 'removes all of the complexity', and I am not suggesting that law and ethics are not connected. But I am claiming that if the relevant law has been described in Statute, the Act will encompass the relevant ethics and any earlier case law which the Act retains. I also assert, that judges are averse to ruling 'against statute'.
It is clear to me, that the MCA has removed paternalism whether 'soft' or 'strong': the MCA enshrines Informed Consent within our law. Previously there was a strange 'pseudo informed consent' in our law, where courts considered things such as 'soft paternalism' and 'Bolam' as legitimate: the recent court rulings which I have read, from judges such as MacDonald, Hedley, Hayden, Hale and Jackson, adopt the different position of 'if the patient is mentally-capable then the patient makes the decision'. The adoption of informed consent is clear in terms of defining the decision-maker (which was not at all clear previously) but the ‘complexity’ now moves to ‘proof of incapacity – when ‘self-destructive decisions’ do not automatically indicate incapacity’. In combination with the assumption of capacity, this clearly makes it very difficult to establish a lack of mental capacity in many situations – but if incapacity is asserted, somebody must stand behind the assertion, and the assertion of incapacity can then be refuted by a judge. Presumably, a doctor whose assertions of incapacity were repeatedly refuted by judges, would subsequently be prevented from assessing capacity: a surgeon who repeatedly made mistakes, would surely be prevented from operating.
There is indeed a lot of complexity in many situations, around the issue of whether capacity is absent, and the refusal of a frail patient to accept the probability of future falls is a 'challenging area': but all I am stating, is that this can only be used to thwart the patient's self-determination after a formal assertion at some point of mental incapacity. The 'danger' is in clinical mindsets moving from 'however much we explain the reality, the patient does not accept his increased risk of falling, and he therefore lacks capacity around 'falls'' (which is in line with the MCA and is correct), to 'a patient at increased risk of falling, which he accepts to be the case, is not free to accept that risk' (which is counter to the MCA and is not correct). The risks of a decision, and the uncertainties within the available information (such as uncertainties in prognosis) are things which a decision-maker considers – and unless mental incapacity has been asserted, the patient is the decision-maker.
This does equate to, expressed 'simply', 'a mentally-capable person cannot be 'safeguarded' against her wish': and I suspect that there is a powerful tension between that legal position and 'various expectations placed on professionals'. There is, for example, a 'sort of expectation' among public, media and politicians that 'suicide should be prevented': but Sir Mark Hedley has explained that a mentally-capable person part-way through a suicide attempt, cannot legally be treated without consent (ref 1). Sir Mark Hedley’s words were admirably clear: ‘‘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”. This is not a judge saying ‘the patient is autonomous unless his decision distresses people’.
Is it best if patients, families and clinicians can arrive at some sort of way forwards which all are satisfied with ? Yes, obviously. Does that mean the legal self-determination of a patient can be denied when disputes arise ? No, it doesn't. Is this often ‘fraught and difficult’ ? I assume it is – I am not personally involved in those disputes, in the way that working clinicians are.
Professor Oliver is right to observe that I am discussing frailty in the context of decision-making, which was not the main thrust of his article. But the law around decision-making applies in all contexts, so this aspect of discussions about 'frail hospital patients' is relevant to my own 'campaign' about end-of-life patients who are in their own homes. One of my issues with EoL at home, is the implication within contemporary guidance and protocols that 'somehow a GP must validate decisions expressed by the patient, which the law clearly states are the patient's decisions to make': so, I am 'very touchy' if there seems to be a similar position that 'somehow 'frail' hospital patients cannot make their own decisions'. These ‘mindsets’, such as the legitimacy of ‘soft paternalism’, and the legally-flawed idea that the impact of a mentally-capable patient’s decisions on his family and friends is somehow connected to the legal right of informed consent, ‘bleed out’ into other settings such as the situations which bother me.
None of which, equates to my claiming that the world is simple: it equates to my claiming that the law has moved on to a position where it is now based on the concept that patients are to be regarded as autonomous individuals and the ‘acceptability’ of their decisions is now legally irrelevant – but that many clinicians are still wedded [understandably] to an obsolete idea that ‘good outcomes should guide decision-making’. As Mr Justice MacDonald explained when a patient was refusing dialysis: ‘others in society may consider C's decision to be unreasonable, illogical or even immoral within the context of the sanctity accorded to life by society in general. None of this however is evidence of a lack of capacity … C is entitled to make her own decision on that question based on the things that are important to her, in keeping with her own personality and system of values and without conforming to society's expectation of what constitutes the 'normal' decision in this situation (if such a thing exists)’.
Competing interests: No competing interests