In response to Alex Ruck Keene (this series of responses 15 March) I am no expert on Article 8 ECHR, and I agree that there is a lot of work to be done, but ReSPECT does not fit the logic of the MCA.
The MCA very clearly places [suitable empowered] welfare attorneys above anyone else, for the making of best-interests decisions. The very concept of 'a form which is intended to guide decision-making during 'clinical emergencies'' implies an acceptance that some form of decision-making is better than 'an appeal to the principle of necessity'. It follows, that if there is a welfare attorney whose authority extends over the treatment being considered, it should be the attorney [and not the senior clinician] who signs the ReSPECT form. I would also point out, that there is only a single space for the contact details of a single 'legal proxy' in the emergency contacts section of the form: there can be several at attorneys, and if appointed with Joint & Several powers, the decision of any one of those [if the others are out of contact] should control best-interests decision-making, so logically there should be space for all attorneys to be listed on the form [with individual contact details].
This ReSPECT form, not only implies (the detailed covering material will be more 'sophisticated' - but it will be the actual form which most clinicians interact with, and 'take legal understanding from') that medical ethics which flow across national boundaries 'somehow rank before national law', but it is under the control of the clinicians in terms of its being 'signed off'. In my opinion, the form needs to bear the signatures of the laymen who are involved, if it is to promote the necessary integration between clinicians and 'family carers'. If the laymen were also signing ReSPECT, it would in my opinion tend to be a more accurate record of discussions (see re 1).
I am not sure if Alex read my more recent response before he submitted his (both are 15 March), suggesting that ADRTs should be stapled to the front of the ReSPECT form (ref 2) - I'm wondering if he can see a legal misunderstanding in that suggestion ?
As I have pointed out, section 4(6) of the MCA is complex, and reading a document signed only by clinicians, is not in my opinion sufficient for a reader (an emergency clinician) to defensibly claim compliance with section 4(9). What might in my opinion be sufficient to defensibly guide (justify following the recommendation on the form) such a clinician, would be if the form included a section along the lines of:
'We the undersigned, have discussed the patient's best-interests, and we all consider that the recommendation(s) on this form are in the patient's best interests, We confirm that to the best of our knowledge, no person who could make an adequately-informed decision about the patient's best interests, disagrees with the recorded decision'.
Then, everyone closely involved - clinicians and family, friends - needs to sign the document.
But clinicians are starting from the 'wrong place' with best-interests decision making. As I have pointed out (ref 3) an individual should start with a bit of self-examination:
'An honest consideration of section 4 of the Act, first requires a person to answer the question 'Am I sufficiently well-informed to properly consider section 4, and thereby to defensibly claim compliance with section 4(9) ?''
That is a very different question, from 'am I the senior clinician present'.
Competing interests: No competing interests