A patients’ role was historically recognised as being considerably limited, arguably nonexistent, in determining what was considered to be their best interests. This essay will engage in a critical analysis of judge-made law relating to the extent of incapacitated patient participation in the assessment of their best interests. In an effort to do so, it will start by assessing the noteworthy judgements which have developed the extent in which an incapacitated patient’s wishes, feelings and views may be taken into account. This evaluation will prove the dynamic shift in societal opinion and medical practice, which developed a paternalistic ‘doctor knows best approach’ of bests interests to a patient centered one instead. Following this, I will engage in a critical case analysis of Peter Jackson J’s antagonistic judgements in A Local Authority v E and the later decision of Wye Valley. This comparison will be used to show how the extent to which the courts have taken into account an incapacitated patient’s wishes has conclusively expanded over time. Finally, I will conclude by analysing what the relevant advantages and disadvantages are of incorporating a patient’s wishes into the best interests test assessment.
I ntroduction
There has been a paradigm shift in medical law over the last three decades in the context of incapacitated patient participation in decisions relating to their treatment. If a patient is held to lack the relevant capacity needed to make a decision regarding their medical care, the family, doctors, and in some cases the courts, engage in an assessment of the patient’s best interests in order to decide on treatment. The legal tests for a patient’s mental capacity and best interests is codified in the Mental Capacity Act 2005 (MCA),1 but has largely been developed through the common law. A patients’ role was historically recognised as being considerably limited, arguably nonexistent, in determining what was considered to be their best interests.2
This essay will engage in a critical analysis of judge-made law relating to the extent of incapacitated patient participation in the assessment of their best interests. In an effort to do so, it will start by assessing the noteworthy judgements which have developed the extent in which an incapacitated patient’s wishes, feelings and views may be taken into account. This evaluation will prove the dynamic shift in societal opinion and medical practice, which developed a paternalistic ‘doctor knows best approach’3 of bests interests to a patient centered one instead. Following this, I will engage in a critical case analysis of Peter Jackson J’s antagonistic judgements in A Local Authority v E 4 and the later decision of Wye Valley. 5 This comparison will be used to show how the extent to which the courts have taken into account an incapacitated patient’s wishes has conclusively expanded over time. Finally, I will conclude by analysing what the relevant advantages and disadvantages are of incorporating a patient’s wishes into the best interests test assessment.
D evelopment of the Common Law
The best interest test has always been the benchmark against which lawful medical treatment of an incapacitated patient is judged.6 What has changed over time, is how the best interests test is assessed, and what factors are weighed into the decision. The first landmark case regarding adults who lacked capacity and what was in their best interest was F v West Berkshire 7 in 1989. The House of Lords held that ‘a doctor can lawfully operate on, or give other treatment to adult patients who are incapable ... of consenting ... provided that the ... treatment concerned is in the best interests of the patient’.8 What this judgement essentially did was apply the Bolam test9 to the definition of best interests, which lawfully allows treatment to be administered regardless of the patient’s consent, if it conforms with ‘a reasonable and competent body of professional opinion’.10 Not only did F empower doctors to decide what was in a patient’s best interest, it also provided no formal restrictions to a doctor’s authority.11 Lord Goff’s 1990 decision in Re F (Sterilisation) 12 followed suit. There was a stark lack of any mention regarding the patient’s views, values or beliefs, with Lord Goff explicitly saying although it was a necessity to consult other medical professionals, considering the patient’s own thoughts was redundant.13
The first key development which began to expand the court’s consideration of a patient’s wishes was noted in the case of Bland. 14 This judgement drew inspiration from the American substituted judgement approach, which requires judges to act based on what they believe the patient in question would have decided had he had the relevant capacity.15 In his judgement, Lord Hoffman noted that a ‘patient's best interests would normally also include having respect paid to what seems most likely to have been his own views on the subject’;16 therefore, although the courts stayed loyal to the best interests test a salient step was made to encompass a patient’s own beliefs into the assessment. Bland 17 was arguably the start of the English courts’ departure from the objective and paternalistic approach to best interests, and evidence of the ‘growing recognition’18 that a patient’s own views and feelings regarding their treatment ought to be taken into account. As the parens patriae jurisdiction19 over the mentally incapable evolved, the courts equally strengthened the notion that the doctor’s reign over the best interests assessment had ceased. Thorpe LJ thus followed by broadening the factors taken into consideration in regards to the best interest test, by arguing that it should encompass not only medical concerns but also any ‘emotional and other welfare issues’.20 He subsequently, and more forcefully, emphasises that the decision on a patient’s best interests was not one from the clinical team, but for the court instead. 21 This decision formally separated the Bolam test from the assessment of best interests, rendering it ‘irrelevant’ to such judicial decisions.22 Thorpe LJ’s judgement in Re A (Medical Treatment: Male Sterilisation) 23 not only significantly broadened the definition of best interests by introducing a more ‘holistic view of benefits and disadvantages’24 but also gave guidance on how to evaluate what is in an individual patient’s best interest. He held that any ‘judge with the responsibility [of making] an evaluation of the best interests of a [patient] lacking capacity should draw up a balance sheet’25 to weigh all relevant factors successfully. The decision in Re A was welcomed by the legislature, which included the balance sheet approach in the 2002 Practice Directions,26 specifically noting that the ‘courts should assess the advantages and disadvantages of the procedure’27 when considering a patient’s best interests.
The increase of focus on including incapacitated patients in the discussion regarding their care and treatment, led to the codification of the judgements noted above into legislation under the MCA 2005.28 The Act included the recognised test for mental capacity regarding medical decision-making29 and the best interest test, the application of said tests, and contextualised the greater wellbeing of patients.30 The implementation of statutory legislation did not develop or expand on the already existing judicial decisions, and therefore had little influence in the extent to which the courts take a patient’s wishes into account. Section 4 of the MCA31 did however lay down what the courts must consider when running the best interest test, namely the patient’s past and present wishes,32 any relevant beliefs and values held by the patient,33 and any other factors that the patient would consider if he had the capacity to.34 The inclusion of this requirement meant that when deciding what was in the patient’s best interest, the courts must focus on the individual patient and make a judgment which would promote their specific welfare.35
The specification of the individual patient’s welfare was monumental. However, despite the newfound placed importance on a patient’s wishes, values and beliefs, they did not have primacy over other factors.36 patient’s wishes in Re S and S,37 The court weighed in on the weight given to the stating that if the wishes are not not 'irrational', 'impracticable' or 'irresponsible', 'a presumption in favour of implementing those wishes’ could be established.38 However, if it was also held that if implementing said wishes would lead to a ‘sufficiently detrimental effect’ on the patient’s health, the clinical interests should be placed before the patient’s wishes.39 This is evidence that although the courts started considering the patient’s views and beliefs, the presumption of life still had supremacy. In The Matter of G(TJ) 40 the court supported the incorporation of the patient’s wishes and feelings into the best interests test,41 however remained apprehensive regarding how much weight these wishes should be given.42 The common law has given a range of options regarding how to balance the patient’s wishes, although they have never given specific guidelines. For example, in Re P 43 it was held that the weight attached should be regarded as case and fact specific.44 On the other hand, in Re MB 45 it was held to be weighed according to the patient’s level of capacity.46 This give and take shows the level of unforeseeability regarding how much weight the courts place on the patient’s wishes and feelings. One of the issues of establishing principles through the common law is the degree of ambiguity which flows from having points of law delivered by different judges through different decisions. On the other hand, one of the advantages of using common law to establish the law, is that you can see it develop and change over time according to the relevant social standards. For example, Re M 47 granted that if enough evidence had been admitted to the court by way of an advanced directive regarding the patient’s wishes and feelings, a minimally conscious patient’s best interest could be rendered as n ot being promoted by continued provision of life-sustained food and hydration.48 This was a significant development from the previous decision held in HE, 49 which stated the presumption will always favour the sanctity of life, even if the patient had previously completed an advanced directive.50
Nonetheless, the most significant decision resulted from the Aintree 51 judgement, where Lady Hale’s rejection of the objective test of the reasonable patient brought into sole focus the currently held ‘subjective, decision-specific evaluation of individual preferences’52 which requires decision-makers to ‘consider matters from the patient’s point of view’.53 54 55 56 57 58 Keene argued that this judgement redefined the role of wishes and feelings regarding the calculation of an incapacitated adult’s best interests for treatment. ascertain what an incapacitated patient’s wishes are’59 we must nonetheless take their wishes into primary consideration, insofar as possible. Consequently, although it has taken a long time for the law to develop, the courts have started giving incapacitated patients’ wishes and feelings a considerable amount of weight. As further evidence, this essay will now critically analyse two judgements as proof of the widening extent to which the courts take into account a patient’s wishes and feelings.
[...]
1 Mental Capacity Act, 2005
2 Donnelly, M., ‘Best Interests, Patient Participation and the Mental Capacity Act 2005’ (2009) Med Law Rev 17, 5.
3 Bolam v Friern Hospital Management Committee 1957 1 WLR 582.
4 A Local Authority v E 2012 EWHC 1639 (COP).
5 Wye Valley NHS Trust v Mr B ( 2015) EWCOP 60.
6 Brazier, M. and Cave, E., Medicine, Patients and the Law, 6th Edition (MUP, 2016), 156.
7 F v West Berkshire Health Authority 1989 2 All E.R. 545.
8 Ibid, 551.
9 1957 1 WLR 582, op cit. note 3, 586.
10 Brazier and Cave, op cit. note 6, 163.
11 Ibid.
12 1990 2 AC 1.
13 Ibid, para 78.
14 Airedale N.H.S. Trust v Blan d 1993 1 All ER 821.
15 Wendler, P., ‘Clarifying substituted judgement: the endorsed life approach’ (2015) Journal of Medical Ethics 41 , 723-730.
16 Bland, op cit. note 14, 857
17 1993 1 All ER 821.
18 Jackson, E., ‘From 'Doctor Knows Best' to Dignity: Placing Adults Who Lack Capacity at the Centre of Decisions About Their Medical Treatment’ (2018) 81 Modern Law Review 2, 152.
19 De Praerogativa Regis 17 Edward II, c.9 (1324) and c.10 (1339).
20 Re A (Medical Treatment: Male Sterilisation) 2000 1 F.C.R. 193, 200.
21 Re S (Adult Patient: Sterilisation) 2000 3 WLR 1288.
22 Ibid, 1299.
23 2000 1 F.C.R. 193
24 Shah, A., ‘The concept of ‘best interests’ in the treatment of mentally incapacitated adults’ (2010) 21 The Journal of Forensic Psychiatry & Psychology 2, 309.
25 op. cit note 20, page 13.
26 Practice Direction (Declaratory proceedings: Incapacitated adults) 2002 1 WLR 325.
27 Ibid, page 372, para E.
28 Op. cit, note 1.
29 Re C (Adult: Refusal of Treatment) 1994 1 All ER 819.
30 Brazier and Cave, op cit. note 6, 155.
31 Op. cit, note 1, section 4(6)
32 Ibid, section 4(6)(a)
33 Ibid, section 4(6)(b)
35 Brazier and Cave, op cit. note 6, 167.
36 Jackson, op. cit. note 17, 253.
37 Re S and S (Protected Persons); C v V 2008 EWHC B16 (Fam)
38 Ibid, 57.
39 Ibid.
40 2010 EWHC 3005 (COP).
41 Ibid, para 36.
42 Donnelly, M., ‘Commentary: Determining Best Interests under the Mental Capacity Act 2005: In The Matter of G(TJ) 2010 EWHC 3005 (COP)’ (2011) Medical Law Review 19, 308.
43 Re P 2014 EWHC 119 (COP)
44 Ibid, para 35.
45 Re MB (An Adult: Medical Treatment) 1997 2 FLR 426.
46 Ibid, at 224.
54 Lady Hale’s judgement ‘lent powerful support’55 to the previous decisions established in Re S and S 56 and G(TJ), 57 further confirming the permanent role of the individual patient in the assessment of his own treatment plan.58 Lady Hale continues by saying that although ‘we cannot always have what we want, nor will it always be possible to
47 Re M (Adult Patient) (Minimally Conscious State: Withdrawal of Treatment) 2011 EWHC 2443 (Fam); 2012 1 WLR 1653.
48 Ibid, 1320.
49 HE v A Hospital NHS Trust 2003 EWHC 1017 (Fam); 2003 2 FLR 408.
50 Shah, A., ‘The concept of ‘best interests’ in the treatment of mentally incapacitated adults’ (2010) 21 The Journal of Forensic Psychiatry & Psychology 2, 313.
51 James v Aintree University Hospitals NHS Foundation Trust 2013 UKSC 67
52 Taylor, H., ‘What are ‘Best Interests’? A critical evaluation of ‘best interests’ decision-making in clinical practice’ (2016) 24 Med Law Rev 2.
53 Aintree, op cit. note 51, para 45.
54 Keene, A.R., ‘More presumptions please? Wishes, feelings and best interests decision making’ (2015) Eld LJ, 296.
55 Ibid, 297.
56 Op cit. note 37
57 Op cit. note 40
58 Keene, op cit. note 55.
59 Eld LJ, 296.
- Quote paper
- Sara Vincenzotti (Author), 2020, My Way or the Court's way?, Munich, GRIN Verlag, https://www.grin.com/document/903670
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