The (in)capacity to trust

Some legislation seems to slip effortlessly through the chambers and committee rooms, gliding through the UK Houses of Parliament with hardly a whisper of protest or any opposition. Such is the case with the Mental Capacity Act, signed into law in April 2005, shortly before the UK General Election. It came into full effect on 1 October 2007 (1). Is there a point to examining legislation that purports only to clarify previous legal questions?

In general, the answer is yes, and in this case, certainly. The language in the Act, the precedents it might set and the need for any of this legislation at all would have been questioned by a competent and self-respecting parliament. For the Act will undoubtedly contribute to a meltdown of trust that once existed between medical professionals and patients. Not only that, but it threatens to complicate the already difficult lives of those who care for incompetent adults.

What’s in this Act?

The preamble to the Act – which applies to England and Wales – describes it as ‘an Act to make new provision relating to persons who lack capacity’ to make decisions with regard to their own welfare, financial and other decisions. The Act covers those who are unable to make a decision for themselves as regards a particular matter at a particular time because of an impairment of, or a disturbance in the functioning of, their mind or brain.

The Act has a false sense of advocacy for those without capacity. First, its name has been changed from the Mental Incapacity Act to the Mental Capacity Act. It begins with a series of easy-to-read principles that emphasise the ‘rights’ of the patient, including the invocation that a person is not to be treated as unable to make a decision merely because he makes unwise decisions. Behind the social-worky, we’re-on-your-side-really façade, the courts are given more powers to interfere where they don’t belong.

Enduring power of attorney, whereby an incapacitated person’s financial affairs are looked after by a trusted person, has been replaced in law by ‘lasting power of attorney’ (LPA). LPA extends the notion of power of attorney from financial interests to all health and welfare issues concerning a mentally incapacitated person. The Act establishes a new Court of Protection where applications for LPA must be lodged and where disputes involving financial, health and welfare issues are resolved.

Another new feature of this law is that it makes ‘wilful neglect’ or ‘ill-treatment’ of a person suffering mental incapacity a crime. This extends from care-home workers to close relatives caring for a patient at home, so long as the person has either LPA or the previous existing power of attorney. It provides a maximum five-year prison sentence.

Perhaps the most notable feature of this new law is that it enshrines the ‘living will’ concept in law. Under this legislation, an 18-year-old (the minimum age for advance decisions) may state that, should he suffer dementia or permanent physical paralysis, all lifesaving treatment, including food and drink, should be discontinued. This applies, says the Act, ‘in such circumstances as he may specify’. The Act goes on to tell doctors in no uncertain language that ‘the specified treatment is not to be carried out or continued’. If, 50 years later, dementia sets in, doctors must follow the teenager’s directive regarding his treatment. So long as nothing ‘clearly inconsistent with the advance decision’ comes to light, they have a duty to starve this individual to death even if, in a demented state, he begs for food and water. If physical paralysis occurs with temporary mental incapacity, they still have the duty to withdraw all lifesaving treatment (the Act is careful to include temporary incapacity).

A step backwards

There are many reasons to object to this Act. One is that it protects no one, despite its advocacy and rather Orwellian name change. It would be easy to justify whatever actions one took in relation to a patient using the vague phrases scattered throughout the Act; to prove that they were in ‘best interests’, to show that one ‘so far as reasonably practicable, permit[ed] and encourage[ed] the person to participate’ in decisions about them, and to demonstrate that the person’s values, beliefs and wishes, ‘so far as is reasonably ascertainable’, were respected. What this Act may well permit is people being ‘helped’ or ‘supported’ (ie, pressurised) to make the ‘right’ decision.

It also introduces confusion. Interestingly, there is a stricture listed in Part 1 (4.5), denoting ‘best interests’, that appears to outlaw euthanasia by advance directive: ‘Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.’ (2) But does this not contradict the primacy of the advance decision by the incapacitated person? How would a court determine the motive of a person who had written an advance directive but was now not in a position to explain?

Such confusion is inevitable, for the Act attempts to impose a legal structure on an everyday, human relationship between medical personnel or carer and patient. There are as many relationships as there are individuals creating them. To attempt to place abstract strictures on these relationships is futile, as Raymond Tallis noted:

‘[P]hysicians will always have to rely on often quite primitive intuitions of the right thing to do, based on a sense of clinical probability, and informed by their humanity and their sense of responsibility, and instructed by what they have learned from conversations with patients and their supporters, and with their medical and nursing colleagues from their training and from their personal and professional experiences. By this means, despite their insolubility in theory, ethical dilemmas are resolved in practice.’ (3)

But this Act erodes the trust that needs to be built up. The inane and patronising attempts to ‘relate’ to the mentally incapacitated like an oppressed minority robs both patient and doctor of any real past, present or future, any individual characteristics at all, making them a generic whole despite the huge range of conditions creating incapacity. One wonders whether the authors of this legislation borrowed their conception of ‘mentally incapacitated’ from the stock plot of a predictable and awful British television programme, where the badly–acted character, complete with voice affectation and indignant expression, just wants his dignity and the macho doctors callously ignore his concerns. Wherever they got it from, it certainly wasn’t the real world.

What is needed is not an outsourcing of medical authority to the courts but the determination of doctors, nurses and those caring for people with mental incapacity to get on with the job, treat individuals as individuals rather than stages in a flow-chart, and not have to check the legality of every single decision they make. The rest of us need to trust in them to do so.

Kevin Yuill is lecturer in American studies at the University of Sunderland. He is the author of Richard Nixon and the Rise of Affirmative Action, published by Rowman & Littlefield. Buy this book from Amazon(UK) or Amazon(USA).

(1) Mental Capacity Act 2005

(2) The Act also notes that it does not change the legal status of assisting a suicide: For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (c. 60) (assisting suicide). See Part 3 (62).

(3) Raymond Tallis, ‘The Reluctance to Trust in Trust’, review of Physician-Assisted Suicide by Robert F. Weir, ed., Times Literary Supplement, 30 January, 1998