We are about to enter the Bermuda Triangle of medical ethics, a place where the compass spins, all bearings are confused, and many may founder.
Yesterday, Dr Grumble posted on the Mental Capacity Act 2005 and the difficulties it causes in circumstances where a patient chooses to reject life saving treatment. A lively debate has kicked off in the comments, and the Witch Doctor has also posted on the matter too.
Now, the first thing to note is that not every one in this debate knows what they are talking about. This is not exactly helpful when the compass is spinning.
The first error has been made by the barrister Dr Grumble approached to clarify the position when faced with a patient who has taken a potentially lethal overdose, and who is now refusing treatment. The advice given was:
“insofar as lawyers will ever answer a question, was not reassuring. It seemed that even if the patient was depressed Dr Grumble would be required to let them die.”
This is not true unless the patient has capacity, which is when things do get difficult. Given that this particular patient is said to be depressed, there is an obvious question as to whether they have capacity and Dr No is pretty sure that, apart from the Witch Doctor’s Red Card Docs, no doctor would decline to treat this patient.
The second error appears to be in relation to which Act a commenter is talking about – and what that Act says and means:
“It could be argued that if a person is so distraught, for whatever reason, that they are not thinking straight then that might constitute "an impairment of, or a disturbance in the functioning of, the mind or brain", which would allow treatment under section 2 of the Act.”
Now, the wording "an impairment of, or a disturbance in the functioning of, the mind or brain" does indeed come from Section 2 of the MCA 2005, but this Section of this Act says absolutely nothing about allowing treatment.
On the other hand, Section 2 of the Mental Health Act 1983, which is about compulsory detention (“being sectioned”) for assessment (as opposed to S3 which is for treatment), does nonetheless, for obvious and humane reasons, allow treatment following assessment.
As the general rule is that the MHA 1983 “trumps” the MCA 2005, for the commenter’s remarks to apply, the patient would need to be detained under S2 of the MHA, and the MCA wouldn’t come into it, in which case the wording defining the relevant disorder is “any disorder or disability of the mind” and, for a S2 detention:
“(a) he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and
(b) he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.”
It therefore seems likely that, regardless of Dr Grumble’s Learned Counsel’s advice, his depressed suicidal patient would get treated, either under the MCA “best interests of the patient” provision, because they lacked capacity; or under S2 of the MHA, because they met the criteria for detention (and treatment) under that act (there is another question about treating physical conditions under the MHA here but we’ll not go there today).
Now, where it does get difficult is with patients who both want to kill themselves (they may already have done something, as Dr Grumble’s patient has, or be expressing a wish to kill themselves at some point in the near future) and have capacity – that is, the capacity to make decisions on their own behalf.
Remember, if they are bonkers, the MHA will trump the MCA and they will be detained under S2 (or other appropriate section) of the MHA. What we are talking about here is a patient who is not apparently mentally ill, and who appears to have capacity.
Incapacity, in the MCA, is clearly defined:
“For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”
Note the specificity: “in relation to a matter if at the material time”: an individual’s capacity may come and go; and at any one time they may have capacity to make one decision (to brush their hair, say) but not another (whether to sell their house). In the Act, the question of capacity is always both situation specific and time specific.
The Act also defines what is meant by “unable to make a decision for himself”:
“a person is unable to make a decision for himself if he is unable—
- (a) to understand the information relevant to the decision,
- (b) to retain that information,
- (c) to use or weigh that information as part of the process of making the decision, or
- (d) to communicate his decision (whether by talking, using sign language or any other means).”
The Act starts with a presumption of capacity. If there is a question of capacity, then there is a two stage test: firstly, does the individual have a relevant impairment or disturbance, and secondly if they do, can they complete all fours steps (a) to (d) above?
And lastly, and importantly, the Act makes it very clear that an unwise – in the view of the assessor – decision cannot be used as evidence of incapacity:
“A person is not to be treated as unable to make a decision merely because he makes an unwise decision.”
Applying these tests is not, as some seem to suggest, a Black Art. The individual either does or does not have a relevant condition, and if they do they either can or cannot carry out steps (a) to (d).
And so we come to our suicidal individual who appears determined, but shows no signs of mental illness, and who has shown – by way of the tests above – that they have capacity.
This is where Dr No struggles. He knows there are many who would section this individual (suicidal ideation is prima facie sufficient to suggest mental illness) – he has seen it happen many times. But he struggles. He struggles because if he did section this individual (note, individual, not patient), he would be over-riding that individual’s right to self-determination. And the right to self-determination is a very important right. To interfere with that right is, in a very real sense, to play God.