Is there only one Mental Capacity Act – or are there two?

By Mike Stone

I repeatedly come across, in guidance and protocols written by clinicians and clinical bodies, the claim or implication that 999 paramedics make ‘THE decision’ about CPR. And that relatives and family-carers, merely contribute to the decision-making of paramedics. I must ask: where does that belief, come from?

Imagine a relative and a paramedic are standing next to a loved-one/patient, and the paramedic has just confirmed the person is in cardiopulmonary arrest. Suppose (we need not speculate as to how the paramedic reaches this conclusion) the paramedic says ‘I have decided that attempted CPR would be against his best interests – so I am not going to attempt CPR’. At which point the relative, who has been trained in how to attempt CPR as first aid, announces ‘I think attempted CPR would be in his best interests’ and then promptly begins CPR.

So far as I can see, in the above situation the relative and the paramedic are each legally responsible for their own best-interests determinations and actions or inactions (MCA 4(9)): and neither has any legal authority over the other (neither MCA 6(6) nor the very tricky-in-practice MCA 42 apply in this situation).

I hardly ever find analysis of some very obvious, and important for relatives, questions, within material published by the BMA, RCN, ReSPECT and similar clinician-led organisations. For example, if a family-carer who could perform CPR decides to not attempt CPR, why would the family-carer also phone 999? If I know my dad doesn’t want CPR, or I believe CPR would be against my dad’s best interests, so I decide I will not attempt CPR when my dad collapses, then why would I phone 999 and involve a paramedic who might attempt CPR? And, please note, my understanding of whether CPR would be appropriate, is distinct from my own ability, or inability, to perform CPR: and, as it happens, it is also distinct from how sure I am that my dad’s collapse is due to a cardiopulmonary arrest. Why are questions such as that one, and the law as it applies to relatives, rarely examined in material written by clinical organisations and targeted at patients and relatives?

If a relative is a welfare attorney (LPA) whose authority extends over life-sustaining treatments, then even if the relative could not herself attempt CPR, her decision that CPR would be against the patient’s best interests should prevent an attending paramedic from attempting CPR (MCA 6(6) and 6(7), and see the final sentence in section 7.29 of the MCA Code of Practice).

Clinicians are very influenced by ‘advance care planning’ – which is in essence not legally-binding, and does not appear to me to sufficiently-involve family-carers. The NHS ‘seems to prefer’ DNACPR forms (signed by doctors and not ‘legally binding’) as compared to written ADRTs (signed by the patient and ‘legally binding’). As a former EoL family-carer, I was informed by conversations: whereas 999 paramedics seem to be overly-influenced by what has been written down.

After a decade of involvement in EoL/MCA/CPR debate, I still find that when I read the Mental Capacity Act as a former family-carer, I seem to be seeing something very different from what clinicians see when they read the Act.

How can we achieve good and joined-up care for people who are dying at home, with relatives and clinicians working together to support patients, if relatives and the 999 Services cannot even agree on the law which should be guiding everyone’s behaviour?

Author: Mike Stone

Affiliation: Coventry, UK

Competing interests: None declared

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