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Human Frailty

Posted by Dr No on 15 December 2009

ophelia.jpgIt has come to Dr No that, despite appearances, ethicists are in fact moles in disguise. He is forced to this unavoidable conclusion by their habits: they live in the dark, cannot see things too well, and have a nasty habit of throwing up another molehill just when you thought you had finally seen the last of them.

The latest molehill has been thrown up on Dr Grumble’s blog by a mole calling himself Enzyme. Seemingly unaware of the mountain of debate that has surrounded the death of Kerrie Wooltorton, Enzyme has been busy tunnelling through Dr G’s blog, ejecting familiar clods of support for bad law and dodgy practice.

The mole position is that Wooltorton had capacity, and could therefore decide her fate, even if the outcome were fatal.

But what if the law on which they rest their case – the Mental Capacity Act 2005 - is fundamentally flawed, both of itself, and in its application – as indeed it is? The mole position becomes no longer tenable.

The flaw in the Act is that it fails to allow for human frailty: that we can and do change our minds: that we are fickle.

It fails by requiring that tests of capacity be time and situation specific. On the face of it, this is a sensible requirement, but there are times when both the letter and the spirit of the specificity backfires and leads, as it did in Wooltorton’s case, to a most horrible outcome.

The effect of the specificity is that the question of capacity – and so by association the questions of consent that go with it – are considered in isolation. Today’s assessment is made today, and if we are said to have capacity, the decisions that we make today – locked as they are to today’s assessment of capacity - are accepted, and given full weight, regardless of what decisions we made yesterday, or might make tomorrow.

By telescoping down to the moment, we obtain but a snapshot. Like any snapshot, it may tell us something of what is in the picture, but it tells us nothing about what is to the right or the left of the frame.

What we do know – from direct observation, and research that has been done - is that many who attempt to kill themselves but survive tell us that they regret the attempt. And yet the MCA, in its perversity, drives us to ignore what has been and what might be. If the individual has capacity, and wants to die today, then so it must be – regardless of whether that moment reflects settled intent – or human frailty.


I like the Mental Capacity Act 2005.

It gives a framework and clarity for how we can operate. Hurrah!

If you were to ask 10 doctors for an opinion on the same thing, you'd get 10 different opinions. The MCA 2005 gives a framework for the legality of process, it doesn't (and can't) prescribe specific action for specific events for specific patients. As a pretty libertarian soul, I see most legislation as unnecessary bureaucracy and officious direction that's a heavy way of directing what should happen through simply a healthy dose of common sense and good practice. Oddly, I rather like the MCA 2005.

The necessity to explicitly consider capacity is now clear. This pleases me.

The test of capacity is incredibly clear and incredibly simple. This pleases me.

The consequence of being capacitated/being incapacitated is detailed (inthe primary legislation and the Code of Practice) which is exhaustive, readable and generally very sensible and useable. This pleases me.

The detail and debate, it seems, is the interpretation of it, not the content/existence of the MCA 2005. But, there, we can argue from different position but postulate a range of sensible, valid views. And since these different views can be congruent with the MCA 2005, such views are then lawful.

So, for example, I see someone with a distressed mood. No past diagnosis of mental disorder. No structural disorder of the brain. Can they have a transient disorder of mind? Why yes, yes they can. Is this acknowledged within the MCA 2005? Yes it is, so much so that consideration of regaining capacity is a point that's well laboured within the Act.

Is a transient perturbation of mind common? Oooh, well, there's the rub. You'd have to say yes. If you were to formally assess anybody's mental health using the DSM criteria (which, it being American, isn't used much here in the UK, but the point remains with the ICD-10 multiaxial system or other assessment instrument) to assess mental health/disorder you quantify impairment. The 5th axis of DSM, the Global Assessment of Function, yields a score up to 100 how well, overall, you're doing.

Nobody gets 100. Everyone has some impairment. Maybe it's 'cause you're frazzled with work, or argued with your wife or had no sleep from caring for a sick child, or whatever.

Given the absence of a dichotomous perfect state of mental wellbeing, with everyone being on a continuum, the issue isn't, "Is there mental illness - yes/no" but "Is there a clinically significant impairment of mind or brain that adversely affects their decision making on this matter, at this point in time, regardless of diagnostic labelling/absence of a disorder/presence of a disorder."

The Act tries to explain this, hence the situation specific thing (you may have mental disorder and lack capacity to manage your financial estate, but be able to manage choice of atire or whether you fancy a cup of tea).

The absence/presence of formal psychiatric diagnosis therefore is less relevant. The evidence of perturbation of mental wellbeing (which may be psychological upset rather than psychiatric illness) can be "a disturbance of mind" which then triggers the MCA 2005.

Assessment of capacity and consequent conclusions of being capacitated or incapacitated are equally pleasing to me. The process is well defined within the Act and Code of Practice. And now Jones, in an albeit overly long text. The understand, retain, weigh and communicate elements of capacity assessment are not easily or robustly evidenced when someone's distraught. Quite the converse. Poor concentration, poor internal consistency, poor retention/recollection of details/consequences discussed 10 minutes ago is the norm.

The Code of Practice is very clear on Advance Decisions and, if life sustaining treatment is to be declined, the framework this should be undertaken within (e.g. undertaken when capacitated, written, signed and witnessed, specific statement on what situation the Advance Decision to refuse treatment applies in, specific statement on accepting it can result in their death). A private, personally written note, without witness, is at variance with the legal/governance framework to protect the individual. You'd not bin it. Although it's not fulfilling the criteria to attract legalaity as an Advance Decision, it's giving a steer on the person's wishes at one point in time, so would inform Best Interest decisions.

Without wishing to seem maverick, the MCA 2005 does seem to afford a framework for social/health care professionals to work as they wish to work, which effortlessly can be congruent with the MCA 2005, thus adding credibility and legality to their practice.

PS : I love the work of Millais; great picture :-)

The Shrink - It is a wonderful painting. And glad to see you are back - I'd noticed your blog has been quiet in recent months.

Thanks for your very thoughtful comment - and for being brave enough to support the MCA when the rest of us are lambasting it! In fact I largely agree that it is not the Act per se, but its application and unseen consequences that bother me. The particular thing I was getting at here, and I still think is the case, is that by being focused on a particular time/decision, the Act encourages boxed in thinking, and thereby exclusion of wider considerations. The Act doesn't say "be boxed in" - but the way it is meant to be used has the effect of causing thinking to be boxed in. Wooltorton is a clear example: the way the Act works means that insufficient consideration was given to her lability of intent. That is my worry. The emphasis on accepting "unwise" decisions adds to this boxing in too: the patient may have capacity, and want to refuse treatment today, but is that wise given the fact she has already changed her mind many times? Unfortunately we can't ask the "is that wise?" question because the Act specifically obliges us to accept capacitous unwise decisions without question.

The other thing about Wooltorton (and others like her) is that she wasn't in any absolute sense approaching the end of a certain terminal illness (the hedging is there for those who will say depression is a terminal illness and it killed her etc). The Act and ADs were intended for physical terminal illness - say cancer or MND, where death was certain as it can be, and not for transient mental states. I covered this indirectly by looking in an earlier post ("Assisted Suicide") at a hypothetical prosecution for assisting suicide by "standing by", and looked at the application of the DPP's factors that favour prosecution (ie factors that suggest a "wrong" has occurred). Factor (3) seems particularly relevant here:

(3) The victim did not have a clear, settled and informed wish to commit suicide; for example, the victim’s history suggests that his or her wish to commit suicide was temporary or subject to change.

It does seem to me that, in something as final as suicide, there needs to be evidence of a "clear, settled and informed wish" if doctors are to withhold "best interest" treatment. Again, the way the Act is applied precludes consideration of how settled the wish is: all that matters is: does she have capacity now, for this decision? Nor does the proviso about giving the incapacitated time to become capacitated help here - in the scenario I am describing they already have capacity (and the Act certainly does not encourage waiting around until they lack capacity!).

And given that one of Wooltorton's (and many like her) diagnoses/labels includes the very words "emotionally unstable", it seems to me even more important to be certain that the wish is settled.

I'm not a lawyer, but it does seem important that, where the decision under consideration can reasonably be expected to involve a fatal outcome, there needs to an additional test that confirms that the wish is settled, with the specific intent of preventing a transient state of mind causing an unnecessary and ultimately unwanted death. Surely it is not beyond the wit of lawyers to add such a clause?

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