Catholic Medical Quarterly Volume 64(2) May 2014

The Decision Maker and Best Interest formulae in the Mental Capacity Act 2005 conflict with Catholic Church Teaching.

Patrick Pullicino 

Introduction

The Mental Capacity Act (MCA) 2005 introduced legislation covering decision-making for persons who lack capacity, particularly when “life-sustaining” decisions are made in hospital. It set up a Code of Practice that has statutory force in that there is a legal duty to follow it.[1]

Concerns had been raised about this legislation before it became law, from pro-life and disability groups, that the MCA would allow euthanasia by neglect. This review reviews two key areas, to look at what Catholic Church’s teaching says about them.

Firstly, the Code of Practice specifies the need to establish a decision maker (DM) to make best interest treatment decisions. According to the MCA, the Decision Maker need not be the patient’s physician and the Decision Maker is obliged to get input from a range of people in making a best interest decision. Traditionally the patient’s treating physician has always made the treatment decisions, and he/she has done this on the basis of his/her medical training and clinical experience, with the help of colleagues of his/her personal choice.

Secondly, the MCA Code of Practice is centred on determining the “best interest” (BI) of a patient. According to traditional medical practice, the patient’s treating physician will treat the patient in their 'best interest' as part of the doctor-patient relationship. According to the MCA, a patient’s 'best interest' has to be determined by following a specified “checklist.” As reflected in case law, “BIs” include basic factors such as preserving life, maintaining or restoring health and minimising suffering. None of these “BIs” are mentioned in the MCA [2].

The Law

Decision Maker. The MCA mandates that “Where the decision involves provision of medical treatment, the doctor or other member of healthcare staff responsible for carrying out the treatment is the decision maker”.[3]   The Decision Maker is not necessarily the patient’s physician but can be: a person caring for the patient, someone interested in the patient’s welfare or someone previously named by the patient to do this. Relatives, including the spouse, do not have a privileged position in decision making. The Decision Maker must follow the 'best interest' checklist and get the views of anyone engaged in caring for the person before deciding on the patient’s 'best interest'. If there is a disagreement between medical staff and the relatives, the MCA advises that an advocate is used to support the person who lacks capacity, independent expert advice is obtained, a second medical opinion is invited or a case conference is held to discuss worries.[4]  The Code encourages everyone to take part as equally as possible.[5]

“Best Interest” Determination.

The only thing the Code stipulates about the duty of the Decision Maker and persons consulted about the 'best interest', is that the persons must make the decision in “reasonable belief” that they are acting in the patient’s 'best interest'.[6]

The Decision Maker is obliged to follow these checklist items:

1. Admonition to ignore patient age, appearance, condition or behaviour in making 'best interest' determination. (This implies the Decision Maker has to make a quality of life assessment.)
2. Consider all “relevant circumstances”, i.e.: Professional judgement as to clinical needs, benefits and burdens of care on health and life expectancy. (This implies a need to prognosticate survival and subordinate treatment decisions to this).
3. Encourage the person to take part in the decision and put off the decision if he/she is improving. (The individual’s wishes are therefore important in the 'best interest' decision)
4. The Decision Maker must determine which treatments are life-sustaining and balance continuing these against them being futile or burdensome. Admonition not to be motivated by wish to kill patient even from compassion. (Implies a need to assess whether treatments are “futile.” Implies quality of life and prognosis assessments also.)
5. Consider past and present wishes and feelings, beliefs and values, written or oral when making 'best interest' decisions. Although an advance directive that ensures hydration/nutrition must be subjugated to the patient’s 'best interest', an advance directive to forego treatment must be binding.[7]  There is an emphasis on written statements. (Subjective reconstruction/impression of patient’s wishes. Balance in favour of stopping treatments, which include nutrition/hydration).
6. Decision Maker has to consider views of: “People close to the patient” and of an attorney or deputy and anyone previously named who wants to be consulted, carers, family carers close relatives. Consultation is necessary and a 'best interest' meeting may be needed.[8]  The Decision Maker makes the final decision but has to demonstrate how he/she followed the checklist in arriving at the decision. (Consultation has to be broad, there are few objective criteria for consultees, and the spouse or close family are not given preferential input into 'best interest' decision)

The “best interest” exercise appears to be a combination of a) an attempt to copy the decision making process of an individual by reconstructing their value structure from written or oral witness, b) an assessment of prognosis c) an assessment on possible futility of on-going medical treatments (this includes nutrition and hydration) d) an assessment of the patient’s quality of life and a subjective judgment as to what is an acceptable quality of life.

In hospitals, the physician in charge of the patient is always the Decision Maker for any decision relating to treatment, especially when determining life-sustaining treatment. The MCA stipulation that “Where the decision involves provision of medical treatment, the doctor or other member of healthcare staff responsible for carrying out the treatment is the decision maker,”[9]  potentially empowers more than one person to make decisions and undermines the role of the physician.

In determining the 'best interest' of his/her patient the physician is bound by his/her conscience, which is in turn informed by his/her medical knowledge, vocation and the covenant that is set up between the doctor and the patient. The MCA mandates that the Decision Maker uses a checklist to determine 'best interest'. The checklist undermines the ethical independence of the physician by a) biasing the Decision Maker toward focusing on futility and prognosis, and b) by devaluing the central role of close family members that may be the only reliable source of the 'best interest' of the patient.

The Church’s Position

Pope Pius XII held that the medical profession has an exalted character. The doctor’s noble mission is that of healing and saving life. The medical profession must be uncompromisingly loyal to the fundamental principles of ethics and Christian morality.[10]  The basic principles of medical ethics are part of the Divine Law and this authorizes the doctor to place unconditional confidence in the principles of medical ethics. The state cannot communicate the direct right of disposition over individuals to doctors for any motive or end whatsoever. Man does not exist for the state but the state for man.[11]

The moral centre of the doctor/patient relationship is the very essence of being a doctor. It is the foundation of the medical profession.[12]  Doctors have a covenant with patients and society. This covenant is grounded in the moral obligations that arise from the nature of the doctor-patient relationship. These moral obligations are based on fundamental human concepts of right and wrong. There are four key aspects of medicine that give it moral status and establish a covenantal relationship:[13]

Conclusions:

The MCA best interest checklist needs to be evidence-based.

In summary, the substitution of an individual physician’s decision by a “'best interest'” decision of a group of persons in the MCA does three things.

1. It turns a moral decision of right/wrong into a decision that is a perceived relative good for the patient. This relativism or utilitarianism has been condemned by the Church.[15]
2. It takes away an individual physician’s conscience decision and substitutes a necessity for “reasonable belief” that each member of a group is acting in the 'best interest' of the patient. This strikes at the very heart of how the Church views a doctor[16] and it breaches the patient’s trust.
3. It takes away the doctor-patient relationship and substitutes a group of varying medical backgrounds, length of training and depth of vocation. The Church sees the doctor’s vocation as sacred and this thwarts the vocation of the physician and betrays the bond that society has built up with medical science. This debasing of the physician’s role goes directly against Pope Pius XII declaration on the exalted nature of the physician’s role.[17]

The MCA multidisciplinary consensus method of determining 'best interest' was incorporated into the Liverpool Care Pathway and was the underlying legal structure by which medical staff were able to withdraw treatment, fluids and nutrition in those that were determined to be “imminently dying”.[18]  After multiple instances of inappropriate deaths and near deaths were reported in the press,[19]  a recent government-initiated review advised discontinuation of the pathway.[20]  The fears expressed about the MCA appear to have been realized.

The MCA attempts to reconstruct the wishes of a patient without capacity from past actions and statements the patient made and from the equal input of carers and family. Physicians traditionally have relied heavily on the spouse to assist in 'best interest' decisions and it is likely that the spouse or close relative is usually the best source of the patient’s true wishes. The rationale for the MCA 'best interest' methodology has never been articulated and since it departs from traditional medical practice it is essential that this methodology should be submitted to clinical research,[21] or withdrawn.

 

Patrick  Pullicino is Professor of Clinical Neuroscience, University  of Kent,  Canterbury,  UK