From legislative intent to current practice:a relational constructionist perspective on The Mental Capacity Act 2005 and legal consciousness in hospice decision-making

Abstract

Hospice care encompasses physical treatment and emotional, social and spiritual support which recognises what is important to each patient and supports decision-making where patients cannot make decisions for themselves. The Mental Capacity Act 2005 (MCA) regulates decision-making for people without capacity. Post-legislative scrutiny of the Act (in 2014) concluded that it is neither well understood nor working well in practice. The research aim is to describe how the Act’s principles are understood and interpreted in hospice practice, specifically considering the patient’s role in the decision-making process. A relational constructionist approach is adopted, situating hospice care within an ethic-of-care understanding of decision-making, adopting a socio-legal perspective and understanding compassion as a concept relevant to the legal process. An innovative genealogical analysis of policy and legislative documents (n=24) influencing the ‘coming to be’ of the Act and a systematic review of Court of Protection judgments (n=63) ‘historicises’ the empirical research. Two group interviews and six individual interviews (13 participants from 2 hospices) provide empirical data. Legal consciousness theory influences analysis of the interview data. In the findings, the hospice is characterised as expert, the guardian of a proper process, ‘holding’ both patient and family members and recognising the patient’s wishes and feelings as fundamental to a good decision. The availability of time to understand a patient’s narrative and the collegiate, supportive nature of the multi-disciplinary team are important factors in hospice decision-making. In conclusion, hospice staff benefit from having time to understand a patient’s narrative and to make decisions within a reciprocal hospice-patient relationship, informed by an ethic-of-care approach. The understanding of hospice as a ‘movement’ (being distinctly and self-consciously different from other settings) influences the legal consciousness of hospice staff such that compliant decision-making is considered to be part of good quality care rather than simply reflecting a legally acceptable approach.