Best interests and material risk

by TheEditor

Categories: Investigative, Law, Rights

‘Best interests’ (BI) is a term used by average people who often make caring or ‘parental’ decisions about their children or loved ones. In medical practice the concept means a lot more, and its full meaning is wrapped in statute and common law precedent. This article will focus primarily on medically-related decision-making – and mainly about treatment.

Introductory matters

This article is at an intricate interface of law and medical practice, which is not easy for most people (based on experience). BI isn’t a simple concept because it requires a deep working knowledge of the law and individual Rights. Human Rights are closely connected to the law surrounding capacity.

Most health professionals are unable to recite the 5 most important Human Rights. I have not done a statistical survey, but my perception is based on numerous interactions with health professionals over the last 10 years. Bear in mind that the Human Rights Act was UK law since 1998. Most health professionals also do not know the 5 key components of negligence as defined in law (based on my similar interactions).

This article will take on the herculean task of marrying Rights with responsibilities in the law of tort. Understanding is not expected to come easily or swiftly. There will be peripheral materials hyperlinked for study. I think that pulling together Rights and the law of tort will not come naturally to health workers.

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A bit of history

History is important for context. The Mental Capacity Act 2005 consolidated many common law principles of capacity into statute. This means that practically it is no longer possible in clinical circles, to think about capacity and BI decisions outside of the Act. Following or in tandem with the Act, is the Mental Capacity Act Code of Practice (MCACOP) 2005. The latter is not statute and cannot through its guidance override what is stated in the MCA 2005. The MHACOP is not statutory interpretation, though it may aim to achieve some of this. In other words the guidance can be deficient or wrong in parts.

Before the MCA, it was common to be less specific about capacity. So, back around 1996 to 2005 it was ‘capacity for all medications‘ used to treat a condition. Around 2000, for patients detained under Mental Health Act, I had asked “Why is it they need either a T2 or a T3 (by different names at that time) – why can’t they consent to some and not consent to other medication?” I was told, “If they can’t consent to one that means they can’t consent to all mental health medications“. It took several years after the 2005 Act for logic to prevail. Now we can have patients on both a T2 and a T3 i.e. for some meds patients may have capacity and consent to (listed on a T2), and at the same time those that they do not consent to on the T3.  Hence a patient may have capacity and consent to treatment of their anxiety disorder with one lot of medications, but lack capacity for treatment of their co-existent schizophrenia with other medications. In essence this showed that capacity drilled down the specific treatment for specific conditions. [This is only an example on consent under the MHA. Best interests do not apply in the MHA.]

Drawing on the above, it means that BI decisions (not relevant to the MHA, of course) need to be specific for specific treatments for specific conditions.

Underlying principles

Autonomy

This means that an adult person is assumed to have a range of Rights to determine for themselves what they will decide upon. Best interests comes in after it is determined that a person has lost the autonomy to make a decision for a certain matter. It is important always, to know that not because autonomy is lost in one area means that autonomy is lost for everything.

Paternalism

This is not a sexist principle, even if it refers to maleness. In essence it can be seen as being parental; similar to what people do in guiding their children appropriately. Keep in mind that the Mental Capacity Act 2005 (MCA), has given every adult person capacity for all decisions. Note again that this article focuses on BI about medical treatment. BI can only be considered after a patient demonstrably loses capacity for decision-making on a specific medical treatment. There can be little debate about that. The onus is on the assessor to demonstrate (not infer) that the patient has lost capacity for treatment with specific medications. Medical treatment includes all treatments that may be lead by registered and licenced medical doctors.

The BI concept is derived from the legal principle of ‘paternalism‘. Paternalism comes in after due respect is paid to individual autonomy of the adult – and it has been demonstrated that autonomy for a particular decision is lost.

Being ‘parental’ means that a person is taking responsibility for another. Good parents would normally provide the right kinds of nutrition, clothing, shelter, emotional and physical support (among other things), for children in their care. Bad parents would neglect many of those common things. Parents sometimes make bad decisions for children, consciously or perhaps unintentionally. Good decisions like selecting the right school, requires some careful thinking.

When one is being ‘parental’ for an adult,  similar common-sense principles will apply. But as you will see because adults are given a Right of self-determination (and other Rights) by the law, taking over decision-making is very carefully regulated. Naturally, it isn’t as simple as being parental to a child.

Decisions

A decision is sometimes taken in a simple way i.e. to eat or not to eat, or to go left or right. Some people may think of it like ‘making a choice’. It has been estimated that the average human being makes about 35,000 decisions in a waking day. Most of these happen quite automatically. Decisions for our purposes here, are not just saying ‘left or right’. A decision may come after considering a whole lot of information. So whilst the ultimate answer may be ‘yes’ or ‘no’, making the decision – how a person arrives at it – is the big issue.

When it comes to medical treatment, there are a range of things that may need to be considered. For the odd uncomplicated headache, a decision to take some paracetamol is not complicated. For a decision on whether to have a certain kind of brain surgery or heart surgery, is obviously more demanding. Those decisions come after considering a range of pros and cons and treatment information. Assessors need to have sound working knowledge of more complicated procedures.

I disagree with authority when people say to me, “Any person who is knowledgeable of a procedure can assess capacity“. That’s a longer story but take it from me that I have seen qualified non-medical prescribers who do not know what they’re doing or have done even when they have the ‘knowledge’. With ‘materiality’ being here with us now, I think that assessors of capacity must have more than basic knowledge or facts.

Material Risk:

The term arises from the case of Montgomery 2015 UKSC. The UK Supreme court in binding precedent (importing from Rogers v Whitaker 1992 – the Australian case) said at para 87 of Montgomery, that “ The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.

Best Interests (in law)

[click image for larger view]

The principle of paternalism is strenuously regulated by the MCA 2005. In Section 4 of the Act, note the word ‘must‘. This is a serious word. It means you have to do it. You are given a statutory duty. Breach of statutory duty is big trouble – in simple language – making negligence ripe and a nice set up for the GMC to have you as a doctor, at their sacrificial altar.

I assert that anybody who is part of BI decision making, who does not demonstrate sound working knowledge of Section 4 is deficient in knowledge. Of course, what normally happens is that BI decision-makers reach for the Act as a checklist, which is fine.

This part of the Act is very readable. Parliament is basically telling people what they must and must not do. It is so neat and simple.

As one is being ‘parental’ for an adult, it is important to not just say you’ve done the business but actually show

a) that you’ve done it and

b) show how you’ve done it.

Documenting that “The patient was encouraged and facilitated in their decision-making…” is not enough. I suggest (not as advice) that something more substantial is required e.g. “At the meeting P engaged with X who knew him very well and had a good rapport. X and I spoke in very simple language. We carefully explained what we meant. X used a portable whiteboard to draw out what was being proposed. P followed on but struggled to understand and could not explain the basics of what we took about 30 minutes to supportively communicate to him.” The latter sort of thing makes it obvious the time spent and how P was facilitated.

The BI problem

When would one normally act in a parental way? The range of situations in everyday life include:

  1. being helpful to someone who obviously is not disabled but perceive as in need of a moment of help – like at a supermarket.
  2. protecting children – definitions of who is a child are not necessary in ordinary life.
  3. protecting against obvious disadvantage or discrimination.
  4. protecting someone who obviously appears vulnerable to some harm e.g. offering a hand to an obviously physically disabled person in crossing the street.

The above are helpful in the ordinary run of life.  But there are problems when statutory requirements operate.

Difficulties

Are their difficulties? Yes there are. What’s the problem with all this? The following are categories which overlap with other problem areas described elsewhere in this article.

Misunderstanding

A potential lack of understanding, is that capacity is specific to a decision. One cannot actually have ‘capacity to take psychiatric medications‘. That’s a nonsense relative to the way capacity has always worked. Capacity is about making a decision about a specific thing or event. So  as outlined above a patient may have capacity to decide to agree to medication for anxiety but not the capacity to decide to agree to medication for schizophrenia. Likewise – by analogy – one can have capacity to decide to agree for ‘right great toenail removal‘ but not capacity for ‘right great toe amputation‘. It is the same toe but different decisions. There is no over-arching capacity for ‘right foot treatments‘ in the latter.

Digging deeper into an another example: A) the assessment of capacity to manage financial affairs is not the same as B) capacity to pass responsibility or hand over responsibility to another legal entity to manage those affairs. How? B might arise from A. An inference about B does not get to the heart of the capacity in A. Therefore a statement of capacity on B is not truly an assessment of A.

Cognitive & Behavioural patterns

The nature of the problem is explored from the aspects of what ‘we’ normally do and what professionals are required to do. Patterns of behaviour in everyday life have a way of imperceptibly shaping thoughts and behaviours in professional domains. For example, decisions that professionals need to make may appear obvious and natural. However, what they are actually required to consider according to law and regulatory guidance, may be rather different.

The urge to be helpful to some one who is at obvious disadvantage or even suffering, can lead to efforts and considerations that have only tangential connections to what is directed to be considered in law.

Cutting corners

A theory on why some workers may go for B (above), might include ‘time-efficiency’ or a perception that ‘it makes no practical difference if the end point is the same‘. The law won’t spell out that ‘shortcuts’ should not taken.  No one has the authority to insert practicalities where the law does not allow for practicalities to be considered. The law expects a relevant capacity to be fully assessed (mindful of any practicalities spelled out in the law) i.e. it is not for assessors to ‘invent’ practicalities, for the purposes of administrative efficiency.

Power differential

I’ve witnessed on occasions, wrong decisions made on peoples’ capacities. The problem here is that the individual subject to decision-making (like a patient), is unaware of what their Rights are and is not in a position to know or object. Ordinary people simply do not know much about this area of law. If you take an example of a learning disabled patient with moderate dementia, it is most unlikely that they’re going to call up a lawyer and say “My rights have been violated. I want to sue!” How? They simply do not know what’s what. There is a risk that a member of staff knowing better may snitch. But from long experience that’s a very low probability.

The power differential of knowledge and actions between decision-makers and very disabled subjects means that the former becomes ‘judge and jury’ – and often times working in an environment with little actual scrutiny or accountability. In my many years of experience I have never seen or heard of any person in authority proactively reviewing the quality or content of these decisions made for others. This leave room for misuse of legal powers or even abuse

Irrationality and unwise choices

People often spend their money in very unwise ways. Some engage in very unsafe sexual practices, knowing very well the risks involved. It doesn’t mean that they all lack capacity for such decisions. It isn’t well appreciated that people of capacity are actually allowed by law to make irrational and unwise decisions, even if they are suffering with delusions. The paternal (or maternal) instinct often goes into overdrive when it comes to people with mental disorders. The thinking is like this, “If they’re seriously mentally disordered, how could they be of capacity?” I’ve actually heard medical doctors say such things.

Difficulties with best interests decison-making.

The first big demand is in being aware of the potential problems and pitfalls as outlined above. The next is confronting a decision that makes sense in law but which may defy our sense of morality or even clinical ethics. Decision makers are often not aware that the law trumps their sense of common sense, morality or ethics.

Declaring a BI decision without demonstrating relevant parts of S3, means that in law the best interests decision is void. How? No adult person can or should have a best interests decison made ‘for them’ unless they are proved to lack capacity for the decsion (under S3).

Assessing capacity is time consuming, especially for those who do not have an organised methodology for doing it. Hence, there is subtle need to be administratively ‘time-efficient’. Most health and social care professionals from my long experience, have difficulty giving the time to this sort of effort across many of 9 subsections of Section 4. From real professional experience, when I have spent the time assisted by another professional with good rapport, it took close to 2 hours in a pretty needy case. I’m not saying it will take that long in every or most cases. I can say that I have not seen S4(6) well documented. A proper capacity and consent assessment for one psychotropic medication can be done in under 15 mins, in a patient with no cognitive impairments, or educational problems. But it could take much longer if a patient was impaired in some way and needed much assistance to understand and retain information. Then comes the documentation – this would probably take 15 to 30 mins if it is done properly.

The law requires certain actions e.g. ‘take into account‘ or ‘must consider‘. I’m afraid if you’ve done the latter, and no one else can ‘see’ that you’ve actually done so from documentation, then it is no different to being ‘not done‘.

There may be a tendency to create tick-box forms which when ticked says ‘it is been done‘. Forms are evidence that it has been done but they do not show ‘what has been done‘. That evidence must always be conspicuous and demonstrate genuine and full consideration. Some may not understand this so here is a practical example. Jack – a cleaner – ticked a form that he has cleaned the toilets at 14:30PM. That doesn’t mean that he has actually cleaned the toilets. Obviously, the situation with protecting people’s rights is more important than cleaning toilets. So, ticking a box that ‘the patient understands and retains… ‘ does not mean that the assessor has tested or demonstrated the issue. An assessor must not act like a cleaner who has ticked the box but has not actually done the job. The job is done when it has been seen to be done.

There is no research I have come across that has made findings on how many BI decisions are deficient or void. It is obviously a difficult piece of research to do ‘in the field’ – and I’m not going to go into reasons.

Amazingly the word ‘risk’ does not appear in S(4) MCA 2005. It would appear ridiculous to suggest that in acting ‘paternalistically’ one need not consider the risks. However, see S4(6)c on ‘other factors that he would be likely to consider’. One of those factors is bound to be risk.  If capacity is about pros and cons – risk and benefits – then BI decisions cannot avoid consideration of the same. The issue of material risk arises from Montgomery 2015 i.e. at para 87 of the judgement. I assert that BI decision-making must include consideration of material risks.

Negligence

Where persons are obliged to carry out certain duties, if they do not and harm follows the law of negligence can be engaged. There are legal tests for negligence, which is a tort. Tort is a civil wrong (not a criminal wrong).

Negligence is basically 4 main things all together:

  1. Duty to individual
  2. Breach of that duty.
  3. Resultant harm or loss.
  4. The breach must have caused the harm.

There is a 5th component from Adamako, but I shan’t go into that – keeping it as simple as possible.

When making BI decisions, that are governed by Statute the burden of duty is high. Therefore all BI assessors or decision-makers must be careful not to inadvertently slip into unlawful negligence. The rush to be helpful may not be a sound defence or mitigation.

What does it mean?

All the above means that if one is acting in BI (or in a paternalist way), one takes the responsibility of that role. The responsibilities are of a higher order because Statute directs it. This is not just about merely being helpful or being parental or that ‘everybody will think we acted well’, as in the ordinary flow of life.

One can expect to be accountable. To whom? The law. Naturally if a BI decision results in harm, their could be a legal investigation. No doubt that would be with a fine-toothed comb.

In BI decisions, naturally ‘material risk’ is important. How? If it would be important to a capacitous individual it would still be important but from the ‘paternalistic principle’.



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