Why Kerrie Wooltorton was not Sectioned Under the Mental Health Act

Have just been on 'Fighting Monsters', one of my favourite social work blogs. Cb, the intrepid author, gives a very good explanation of how a clinician is meant to decide whether a patient should be treated under the Mental Health Act or the Mental Capacity Act. Basically, if you are treating the patient for a physical condition, then you treat under the MCA. If you are treating for their mental condition, then you treat under the MHA. Kerrie Wooltorton came under the MCA, because the condition that they were treating her for was physical (an overdose) although the condition that had caused it was a mental one. You can read cb's analysis here..

They Saw It Coming..

Apologies again for disappearing and not completing my posts on the Mental Capacity Act. One of my relatives has been in hospital for the past three weeks and I have been somewhat caught up. Anyway, I returned to the MCA and came across this. In the light of the Kerrie Wooltorton case, it has a particularly haunting quality to it..

Binding and Loosing -Advance Directives and the Mental Capacity Act

Suppose for a moment that you are a judge. A man who has stolen a loaf is brought before you . It turns out that he stole the loaf because he was poor and had nothing to eat. You would probably let him go. But you wouldn't then go on to make a law to say that stealing was ok. There are lots of cases where stealing is just stealing. And you probably wouldn't go on to write into the law that if a person was poor, that they were to be acquitted. If you did that you would have to legislate for lots of other exceptions and the law would become confused and unclear on the matter. Instead, you might provide guidelines as to what is to be taken into consideration in judging someone, but you wouldn't give it a statutory force. After all, what is a judge and jury there for, but to use their common sense?

This is the essence of law making. It's about knowing what to bind and what to loose. Good law gets the balance right. Bad law gets the balance wrong. The Mental Capacity Act got it wrong when it made advance directives legally binding.

Why did the MCA make advance directives legally binding? It really goes back to what originally prompted the law. People lacking mental capacity have less choice than anyone else over their life. Their medication, their clothes, the place that they live, their finances; all these matters are organised through their carer and what they actually want can easily get lost. The MCA was meant to be a way of making sure that the person's choice was respected and so the MCA's five principles were as follows;

1.
A person must be assumed to have capacity unless it is established that they lack capacity.
2.
A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
3.
A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
4.
An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

5.
Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

These seem a reasonably straightforward and laudable set of aims. They actually work quite well in everyday situations. But look what happens if you make advance directives legally binding. The balance between statement 3 and statement 4 is lost. The law becomes completely confused and it becomes impossible to make a decision based on it.

Then there's the bother of advance directives themselves. Now, most peoples' idea of an advance directive is a living will, carefully drawn up at leisure with witnesses in attendance. But an advance directive can be a suicide note, as Kerrie Wooltorton has just demonstrated. Or it can be a form that is handed to you as you're being wheeled into hospital with a stroke, stating that if you go into a coma, you don't want life sustaining treatment. Most people would sign that thinking that the hospital was referring to ventilators, whereas it also applies to intravenous drips. And this is where it all gets really messy. You have to start drawing up law for all the eventualities. For example, does the person really understand the implications of the directive? Do they know that they will not automatically be provided with an intravenous drip unless they specify it? If someone has a degenerative illness like Parkinsons and states they want treatment withdrawn when things get too much, and they don't keep their directive up to date, what do you do if a cure becomes available and they don't have the capacity to revoke their original directive? (This is entirely possible; there have been very promising results for Parkinsons in adult stem cell research in America and other single cell diseases like it). If a person can sign their name on the directive, does that mean they understand what they are signing? I can answer that one for you, because my mother signed up for a fitted kitchen when she was in the early stages of Alzheimers despite being too old to be granted a loan and despite the price being ridiculous. Only the fact that my sister was a lawyer and that we acted very quickly, saved her from losing a whole lot of money. The MCA does try to address some of these dilemmas but the bottom line is that it can't be policed. If something goes wrong with a directive, you can't override. It's got to go to court and there isn't always the time to do that.

If you make the advance directive advisory, all the confusion goes away. A doctor can use their discretion. If someone like Kerrie Wooltorton comes in, they can give treatment. If there's a relative hanging about looking for money and it's their signature as witness on the directive, they can ignore it. If it's someone desperately ill from cancer, they can treat palliatively but not aggressively. But make it legally binding and all discretion goes out of the window. It doesn't increase choice; it actually makes choice impossible.

Two years before the MCA started its passage, Scotland had already updated its law on this subject with the Adults with Incapacity Act. I'll say more about this, but in Scotland, advance directives are still advisory. And the law is much better for it.

The Trojan Horse

Politicians have a number of ways of getting tricky legislation through. One method is to pass it just before Christmas or the summer recess, when noone's paying attention. Another is to couch the bill in obscure language that lasts for fifty pages and put the important bit somewhere in the middle where it won't be noticed. But by far the favourite method of passing controversial legislation is the Trojan horse method. You take an issue that everyone agrees on, and form a bill round it. Then you add on the legislation that you want to pass. People are then torn between voting on the part in the bill that they like, and the part that they don't like. Classic examples of the Trojan horse are the Tobacco and Primary Medical Services Act (Scotland) which introduced measures to prevent the sale of tobacco to minors, but also allowed GP services to be run by private companies; the Legislation and Regulatory Reform Act 2006 which became known as 'the abolition of Parliament act' for the draconian powers that it granted to the cabinet in an 'emergency; and the Mental Capacity Act itself, which was meant to provide a Court of Protection and an independent advocacy service for the mentally incapacitated, but ended up taking their rights away.

The original motivation of this bill was picking up on a previous bill that was championed by the MP Tom Clarke to provide an advocacy service for the mentally incapacitated. This bill went through Parliament in the Thatcher years, and an advocacy service was agreed to in principle, but with the caveat 'when costs allow'. Of course, the government decided that costs didn't allow them to set this up and so it sank without trace. But the other motivation was the Tony Bland case. Tony Bland was a football supporter who was crushed in the crowd at Hillsborough. He spent four years in PVS (permanant vegetative state) and his family went to the High Court to get his feeding drips removed, so that he could die.The judge ruled in their favour but made it clear that it was not to set a precedent for case law and any other cases of this nature had to go to court to be decided. These cases were relatively few; there were two or three applications each year to the High Court on these matters, but the Tony Bland case became the second driver for the more controversial stuff that was put in the MCA. These were;

1.) Making advance directives legally binding;
2) Re-classifying food and fluids provided by intravenous means, as medical treatment as opposed to basic care;
3.) 'Best interests' legislation which allowed death as one option to be considered;
4.) One that people haven't really picked up on yet; non -therapeutic medical research on the mentally incapacitated.

The Mental Capacity Bill (or the mental incapacity bill as it was known until the last year of its progress) was a long time in preparation. It was fifteen years in the writing before it finally started its journey through the various stages in Westminster. The person charged with steering it was David Lammy. David Lammy(pictured) is MP for Tottenham and was a rising star. He was the first British black to study law at Harvard. At this point he was Minister for Constitutional Affairs and this bill was a chance to prove himself. Backing him were an alliance of charities who had been involved in the consultation process of the bill and who desperately wanted the advocacy service. Those opposing were mainly church groups and the Parliamentary Pro Life Group whose main speakers were Jim Dobbin, Ann Widdecombe and Lord Brennan. So the stage was set for the debate and what a debate it turned out to be.

PS For the witches amongst us, David Lammy has a connection to DEMOS..

The Mental Capacity Act and Me

October is something of a reflective month for me. It's the time when I cut back the trees and bushes in the garden, tie up the branches and take them to the dump. I clear out all the rubbish that's gathered in the house. I get things mended, get the boiler checked and batten down the hatches for winter. And it's the time when I also look back at what has happened and assess where I've been going, and more importantly, where I'm going to end up.

This October has been more thoughtful than usual. It's now four years since the Mental Capacity Act was passed and the case of Kerrie Wooltorton has brought it to the fore. The MCA was a bill with significance for me, because it was the first time that I got seriously involved in politics. It changed my life and changed me. Although I had already looked after my mum for some time before this bill started its journey through Parliament in 2002, this was the point that I actually truly became a carer, because it was the point when I started to really care.

One of the advantages (if you can call it that) of looking after someone vulnerable for so long, is that you see the system as it actually is. Most peoples' experience of tertiary care is mercifully short; it will be a few weeks or months at the end of a relatives' life. That means that they don't get to know how it works and what the dangers are in that system. And that explains the total chasm in understanding between them and someone like myself, who has had to deal with it for twelve years. That is why, when I saw the mental incapacity bill, I nearly went off my head and other people could not see the danger. And that is why, four years from it being passed, we are sitting saying 'What happened? We didn't mean it to work like this!'

In the next few posts, I'm going to explain what went wrong and how we got there.

Martin Ryan - What Now for the Mental Capacity Act?

Now that I've calmed down a bit, I've had a look at the six cases involved in the Ombudsman's investigation. They are all appalling, but one that strikes me is the case of Martin Ryan, a 43 year old who had Down's. He was taken into hospital following a stroke, and as is normal in stroke, was unable to swallow food or fluids because stroke tends to paralyse the throat muscles. The usual procedure is to attach a drip or peg for feeding, but this did not happen. Instead Martin had a nil by mouth instruction placed on his case, and he was left without food for 26 days. By the time other staff were alerted to his case and had arranged an operating space to insert a peg, Martin had developed pnuemonia. He died shortly afterwards. The Ombudsman ruled in his parents' favour and awarded £40 000 compensation. However, the staff involved were not named in the report and if his parents take this to court, they could have a fight on their hands. That is because of the Mental Capacity Act and what it has to say about food and fluids provided by intravenous means.

The Mental Capacity Act came into law in 2007. Initially it had started off as a bill with wide support, because it sought to provide advocates for people who were mentally incapacitated. As the bill progressed however, more bits were added to it. Two proposals attracted a great deal of controversy. One was that permission could be given for medical research to be carried out on the mentally incapacitated if it benefited them or the disease that they suffered from. All attempts to change 'or' to 'and', failed. The second proposal that caused a huge reaction was the proposal to redefine intravenous food and fluids from 'basic care' to 'medical treatment.' This meant that drips and the like were redefined as medication and therefore could be administered or withdrawn as such; it was no longer a sine qua non under the terms of basic care.

The case that fronted this debate was that of Tony Bland, who was in PVS for four years after the Hillsborough disaster, and the idea of this legislation was to allow those in PVS to die, if that was in their 'best interests'. But those who were opposed to the bill pointed out that in the case of stroke, where someone could not swallow and could not articulate what they wanted, that this legislation could be abused. The non-treatment of elderly people with stroke by leaving them without a drip was becoming increasingly common in hospitals and it was felt that this legislation would give legitimacy to this kind of abuse. I fear that that is exactly what happened to Martin Evans. The fact that he was 43 with Down's would have militated against him, because the average age of death for someone with Down's is 50. The report states that because he had learning difficulties, the staff felt that they would not be able to attach feeding apparatus. But they didn't even try, not once.
He was not even administed aspirin, which is a standard treatment for stroke.

Now here's the problem. This happened in 2005, so a court might rule that the law re drips as basic care comes into play, and that therefore the law was broken. But if a court uses the Mental Capacity act, then it can be argued completely differently. The drip is medical treatment, so there is no legal compulsion for its provision. The staff might argue that it was in Martin's 'best interests' to avoid the possible distress that trying to fit a peg might involve for someone of his understanding. They might also point out that he was 43 and old by Down's standards and treating him for his stroke was not in his 'best interests' either. Which just goes to show what a total crock of s*** this particular part of the Mental Capacity Act is.

Iain Duncan Smith predicted in one of the debates that the Mental Capacity Act would return to Parliament for amendment. I think he was right and that the legislators need to close this particular loophole, or we will see more of this and be unable to stop it. In the meantime, I wish Martin's parents well, and hope that they are successful in their campaign for justice.