Electronic copy available at: http://ssrn.com/abstract=1961614
BEST INTERESTS, PATIENT PARTICIPATION AND THE MENTAL
CAPACITY ACT 2005*
(2009) 17 Medical Law Review 1-29
For many hundreds of years, the law has been concerned with the task of making
decisions for adults lacking legal capacity.1 For much of this time, these decisions
have been made on the basis that they were in the best interests of the person in
question.2 With the advent of the declaratory jurisdiction in 1990,3 the best
interests standard came to be widely used in the healthcare context. However, the
application of the standard received relatively little detailed analysis and the
conceptual basis for the standard has remained, for the most part, unexplored.
Since the enactment of the Mental Capacity Act 2005 (“MCA”), the best interests
standard now operates within a detailed legislative framework.4 Of particular
interest are the participative elements in the MCA’s approach to best interests,
represented by the Act’s requirement that the person lacking capacity should
participate in the process of determining her5 best interests6 and the recognition
which the Act affords to the present and past wishes and feelings of the person
*This article has benefited greatly from discussions with Professor Phil Fennell, Cardiff Law School;
Professor John Mee, Law Faculty, University College Cork and Professor Sidney Watson, Law School,
St Louis University, Missouri. Any views expressed and any errors are my own.
1 The first formal statement of the parens patriae jurisdiction may be found in the 13th century
“statute” de Prærogativa Regis 17 Edward II, c.9 and c.10. See further J. Seymour “Parens Patriae
and Wardship Powers: Their Nature and Origins” (1994) 14 O.J.L.S. 159.
2 The term “best interests”, now associated with decision-making for people lacking capacity, was not
used in the very early cases. Instead, the focus was on the “benefit” to the person. L. Shelford
Practical Treatise on the Law Concerning Lunatics, Idiots, and Persons of Unsound Mind (Philadephia:
JS Littell, 1833), pp. 129-130 cites a number of such cases: see In re Bird, 9 March 1827; In re Baker,
20 June 1827; and In re Harris, 9 August 1827.
3 The declaratory jurisdiction was established in Re F: (An Adult: Sterilisation)  2 A.C. 1 as an
replacement for the parens patriae jurisdiction which had been abolished in 1959 by a combination of
the Revocation of the Royal Warrant under the Sign Manual and section 1 of the Mental Health Act
1959. The House of Lords held that the common law doctrine of necessity allowed the medical
treatment of adults who were unable to give personal consent. For the doctrine to apply, the medical
intervention had to be in the best interests of the adult lacking capacity and a formal application
could be made to the Family Division of the High Court for a declaration to this effect.
4 The MCA commenced gradually over the course of 2007 with the main body of the Act coming fully
into force on 1 October 2007 (see the Mental Capacity Act 2005 (Commencement No 2) Order 2007
5 For convenience, I have adopted the female pronoun throughout this article.
6 Section 4 (4) of the MCA.
Electronic copy available at: http://ssrn.com/abstract=1961614
lacking capacity and to the beliefs and values that would have been likely to
influence her decision if she had had capacity.7
This article analyses the best interests standard as applied in the context of
healthcare decisions in light of the participative elements introduced by the MCA. It
begins with a brief consideration of the best interests standard as it developed at
common law. The article shows that, while the courts gradually developed a more
systematic approach to best interests, judges remained largely resistant to
facilitating participation by patients lacking capacity. The article then examines the
changes brought about by the MCA in this regard. It explores the policy basis for
this aspect of the MCA and shows why the participative model represents the most
appropriate response to decision-making for people lacking mental capacity.
Notwithstanding the attractions of the MCA’s participative framework from a policy
perspective, this approach to best interests gives rise to important practical and
conceptual questions, which the article then explores. The article examines the
difficulties in delivering genuine participation at a practical level and identifies the
risk that patient participation will become a tokenistic endeavour. It also shows
that, at a conceptual level, the patient’s participation in the process introduces a
subjective element into a process which had hitherto sought to be objective in
nature. Therefore, participation may give rise to potential conflicts between a
patient’s views and what would “objectively” be seen as her best interests. Further,
because the participative model favoured by the MCA recognises both the past and
the present wishes and feelings of the patient lacking capacity, there may be a
conflict between the patient’s own pre- and post-incapacity wishes. It will be
argued that these conflicts are an inevitable feature of the participative model
adopted by the MCA and that the fact that they arise does not diminish the value of
the MCA approach. However, these underlying issues must be recognised and dealt
with if the participative framework in the MCA is to have more than rhetorical
II. BEST INTERESTS AT COMMON LAW: THE DEVELOPMENT OF THE
Although frequently applied in practice, the best interests standard has often been
treated as if its application required no more than general good will on the part of
the decision-maker. This laxity is not unique to the law. Ethicists Buchanan and
Brock describe a similar omission in ethical theory where, they note, “philosophical
work has centered on the rights of competent persons, and the grounding of these
rights in utility or in autonomy, rather than on decisions for those who are
7 Section 4 (6) of the MCA.
8 A. Buchanan and D. Brock Deciding for Others: The Ethics of Surrogate Decision Making (Cambridge:
Cambridge University Press, 1989), p. 3.
The lack of a detailed conceptual decision-making framework is evident in the
foundational decision of the House of Lords in Re F (Mental Patient: Sterilisation).9
Although careful to clarify the formal legal basis for decision-making, the House of
Lords dedicated little attention to the values underlying the law. The House of
Lords confirmed the applicability of the best interests test in determining if medical
treatment (in this case, a sterilisation procedure) should be given but, other than
identifying the relevance of medical best interests,10 it did not specify the test to be
applied in any detail.11 Nor did the House of Lords raise the issue of the rights of the
person lacking capacity.12 The House of Lords also stated that the Bolam test for
medical negligence13 applied to determinations of best interests.14 This meant that the
task of determining best interests was effectively delegated to the medical profession.15
The extent of judicial delegation of responsibility is evident in Re MB (An Adult:
Medical Treatment),16 where the Court of Appeal held that treatment could be
imposed on the patient, by force if necessary, provided that the treatment was in her
best interests. The Court considered that the extent of the force to be used was to be
judged in each individual case by the healthcare professionals.17
A. Towards a More Sophisticated Approach
Notwithstanding this unpromising beginning, the expanding declaratory
jurisdiction18 facilitated the subsequent development of a more sophisticated
conception of best interests. The decision of the Court of Appeal in Re A (Medical
Treatment: Male Sterilisation)19 shows this more sophisticated standard in
operation, in the context of the proposed sterilisation of a 28 year-old man with
Down’s Syndrome. Dame Butler-Sloss P. confirmed the view that the best interests
9  2 AC 1. See generally M. Donnelly "Decision Making for Mentally Incompetent People: The
Empty Formula of Best Interests" (2001) 20 Medicine and Law 405.
10 Ibid., 55 per Lord Brandon.
11 In Airedale NHS Trust v Bland  A.C. 789, the House of Lords held that the best interests
standard adopted in Re F was also applicable to treatment withdrawal. In relation to a patient in a
persistent vegetative state, the appropriate question was (ibid., 808 per Lord Goff) whether it was in
the patient’s best interests to continue to receive life-sustaining treatment.
12 This accords with the approach taken by the House of Lords in the earlier case of Re B (A Minor)
(Wardship: Sterilisation)  1 A.C. 199.
13 See Bolam v Friern Hospital Management Committee  1 W.L.R. 582. Since Bolitho v Hackney
Health Authority  A.C. 232, the Bolam test incorporates a degree of judicial scrutiny of the
conduct of medical professionals.
14 Re F (Mental Patient: Sterilisation)  2 A.C. 1, 52 per Lord Bridge; ibid., 68 per Lord Brandon;
ibid., 69 per Lord Griffiths; ibid., 78 per Lord Goff.
15 See I. Kennedy “Patients, Doctors and Human Rights” in R. Blackburn and J. Taylor eds Human
Rights for the 1990s (London: Mansell, 1991), pp. 89-90.
16  2 F.C.R. 541.
17 Ibid., 556 per Dame Elizabeth Butler Sloss L.J. The Court did note that the question of force might
have to be considered in depth on another occasion.
18 In addition to the body of healthcare cases, the declaratory jurisdiction was held to cover a range of
personal decisions outside the healthcare context in which it originated: see Re S (Hospital Patient:
Court’s Jurisdiction)  Fam. 1 and Re F (Adult: Court’s Jurisdiction)  3 Fam. 38.
19  1 F.C.R. 193.
test “encompasses medical, emotional and all other welfare issues”.20 She also
separated the assessment of best interests from the Bolam test, rejecting the
suggestion that the duty to act in the patient’s best interests could be conflated with
the professional duty of care.21 With the incorporation of the European Convention
on Human Rights imminent, Dame Butler-Sloss P also noted the impact of patients’
human rights on the application of the standard,22 although she did not discuss in
any detail how the ECHR would apply.23
Re A also saw the Court of Appeal move towards a more systematic approach to the
assessment of best interests. Drawing on the checklist approach advocated by the
Law Commission in its Report on Incapacity,24 Thorpe L.J. adopted a balance sheet,
setting out the actual benefits to be gained from the medical procedure and any
“counterbalancing dis-benefits”.25 He also noted that, in making entries on either
side, the judge should also include a realistic assessment of the possibility that the
loss or gain would occur. It is only if the account is in “relatively significant” credit
that the procedure will be considered to be in the best interests of the individual.26
The balance sheet approach was further formalised in the Practice Direction issued
by the Official Solicitor which noted that the court should assess in percentage terms
the likelihood of the advantages and disadvantages of the procedure occurring.27
B. Judicial Approaches to Participation
In spite of the advances outlined above, important gaps remained in judicial
approaches to best interests. Of particular interest in the current context is the
limited role accorded to patient participation in determining best interests in a
healthcare context.28 Notwithstanding the Law Commission’s inclusion of the
patient’s views in its best interests checklist, this factor was absence from Thorpe
LJ’s balance sheet in Re A. This was in spite of the fact that A had clearly indicated
20 Ibid., 200. This view had already been established in Re Y (Mental Patient: Bone Marrow Donation)
 Fam. 110. See also In re S (Adult Patient: Sterilisation)  2 Fam. 15, 30; Simms v Simms
and Anor; A v A and Anor  E.W.H.C. 2734 (Fam), ; R (Burke) v The General Medical Council
and Others  Q.B. 424, 455-456. See generally P. Lewis “Procedures That Are Against the
Medical Interests of Incompetent Adults” (2002) 22 O.J.L.S. 575.
21  1 F.C.R. 193, 200-201. Dame Elizabeth Butler-Sloss P. reiterated her position in Re SL (Adult
Patient: Medical Treatment)  2 F.C.R. 452 where her argument found the support of Thorpe LJ.
This position was confirmed by Court of Appeal in NHS Trust v A and Anor  E.W.C.A. Civ. 1145.
22 Ibid., 201.
23 The linkage between rights arising under the ECHR and the requirement for patient participation is
discussed further in text to n. 81 infra.
24 Law Com. No 231 (London: HMSO, 1995), para. 3.28.
25 Supra n. 19, 206.
26 Ibid. For examples of the balance sheet approach in operation, see A National Health Trust v C
unreported, High Court (Family Division), 8 February 2000 (in the context of non-consensual
sterilisation); A Hospital NHS Trust v S  E.W.H.C. 365 (Fam.),  (in the context of receipt of a
27 Practice Direction (Declaratory Proceedings: Incapacitated Adults)  1 W.L.R. 325, para 7.
28 Although note the more inclusive approach in a non-healthcare context in Bailey v Warren 
E.W.C.A Civ. 51,  per Arden L.J.
hand, liberal theorists, such as Dworkin,131 argue that that an individual’s past
(capable) preferences must be respected even if these conflict with the individual’s
current best interests or her current (incapable) wishes or desires. Thus, Dworkin’s
approach to decision-making for people lacking capacity is based on respect for the
individual’s prior (or precedent) autonomy. Justifying this approach in the case of
patients with dementia, Dworkin argues that “the fate of a demented person can
affect the character of his …whole life, not just its sad final stages”.132 In developing
this argument, Dworkin contrasts two kinds of interests that people have in their
lives. Experiential interests are concerned with quality of life issues, such as
pleasure, contentment or lack of pain. Critical interests are concerned with making
value judgements and reaching autonomous decisions on this basis.133 From
Dworkin’s liberal perspective, the latter interests are more fundamental and
therefore the capable individual’s critical evaluation of her own life and how she
wishes to live it must be prioritised ahead of her experiential interests after she
Commentators who reject Dworkin’s position dispute the longitudinal view of life
which he takes.134 Dresser provides one of the leading critiques in this regard.135 She
argues that past preferences should not take precedence over current preferences
or interests because, in simple terms, people change over the course of their lives.
In Dresser’s words, “[p]eople experiencing various life events, including set-backs in
their physical and mental functioning may revise their goals, values and definitions
of personal wellbeing”.136 Therefore, legally incapable people should not be
governed by the preferences of their previous capable selves. Dresser derives
support for this view from Parfit’s argument that there is no essential human
identity but that identity is based on the fact of psychological continuity which in
turn is dependent on various factors, including the retention of memories.137 If
psychological continuity is broken through a loss of memory, the person becomes a
different person to the one she was before this loss took place. On this basis, her
prior wishes have no more moral authority than those of a stranger.
However, as Buchanan and Brock argue, even if psychological continuity is a
necessary condition for human identity, the relevant issue relates to how much
psychological continuity is required so as to maintain identity. 138 Buchanan and
Brock argue that incapacity per se does not invalidate an advance decision but that
an advance decision loses moral authority as the level of psychological continuity
131 Life’s Dominion supra note 96. See also N. Rhoden “Litigating Life and Death” (1988) 102 Harv
Law Rev 375; N. Cantor “Prospective Autonomy: On the Limits of Shaping One’s Postcompetence
Medical Fate (1992) 13 Journal of Contemporary Health Law and Policy 13.
132 Ibid., p. 230.
133 Ibid., pp. 201-202.
134 See text to n. 125 supra.
135 See work cited in n. 128 supra, and in particular “Life, Death and Incompetent Patients”.
136 “Life, Death and Incompetent Patients” supra n. 128, 379.
137 See Reasons and Persons (Oxford: Clarendon, 1984), p. 216 et seq.
138 Supra n. 8, pp. 152 – 189. See also Rhoden supra n. 131.
between the prior capable patient and the current incapable one becomes less.
They contend that, even when the diminution of psychological continuity is
sufficient to suggest that the incapable person is not the same as the former capable
person, there may still be enough continuity to allow her prior wishes at least some
weight in reaching a decision.139
Even if one accepts as a normative proposition that prior capable wishes should
govern treatment decisions for people lacking capacity, this is persuasive only if the
prior wishes of the individual now lacking capacity can be ascertained. Dworkin’s
arguments relate primarily to clearly indicated preferences through a formal
advance directive.140 He does not address in any detail the question of how
preferences that are not clearly indicated should be dealt with.141 In the absence of a
clear indication of preference, it is much more difficult to ground an argument in the
right of autonomy and the endeavour risks becoming simply a “judicial artifice [that]
can render the exercise of state power invisible”.142 For this reason, this issue of
ascertaining the patient’s past views, considered below, has both a practical and a
C. Ascertaining Past Wishes
As noted above, the MCA lists a range of people to be consulted in trying to ascertain
the past wishes and the relevant beliefs and views of the person lacking capacity.143
While the consultative model is a good one, it is important to remember that even
close friends or family members cannot always know the past preferences or the
relevant beliefs and values of the person lacking capacity. Even if it is presumed
that consultees will always act in good faith, studies show that many surrogates
cannot accurately predict what patients would have chosen. 144 Difficulties in this
regard may be accentuated by the fact that many people do not discuss their
preferences with family members. Wicclair notes that many elderly people (who are
likely to be highly represented within the category of adults lacking legal capacity)
do not discuss their preferences and that, when elderly people do talk to their
families about future care, comments may be vague, off-hand, and ambiguous.145
Statements such as “I would rather die than be dependent” may reflect a desire for
139 Ibid.¸ pp. 182-183.
140 Supra n. 96, p 226.
141 See ibid, pp 232-233 for Dworkin’s inconclusive description of a situation involving an individual
without a clear advance directive.
142 Harmon supra n. 90, 71.
143 For full list, see text to n. 59 supra.
144 See study reported by D. Sulmasy et al “The Accuracy of Substituted Judgments in Patients with
Terminal Diagnosis” (1998) 128 Annals of Internal Medicine 621 which matched the actual treatment
preferences of (capable) patients who had a predicted two-year survival rate of less than 50% with
their family members’ views of their likely preferences. Approximately one-third of family members
made inaccurate predictions regarding preferences. See also studies cited in D. Wicclair Ethics and
the Elderly (New York: Oxford University Press, 1993), p. 56; Francis supra n. 91, 569-570.
145 Ethics and the Elderly ibid., p. 55-56.
reassurance, or may be a result of temporary depression or fear, and may not
represent the person’s considered views on future care should they lose capacity.
Wicclair also notes that family members may disagree regarding preferences and
that conflicts of interest between family members may influence interpretations of
the incapable patient’s former views.146
D. The Challenges for the Recognition of Past Wishes
Unlike the substituted judgment standard which it, to a degree, emulates, section 4
(6) of the MCA does not indicate how conflicts between past and present
preferences or between past preferences and current interests are to be dealt
with.147 However, elsewhere in the MCA, there are indications of a normative
preference for present interests over past preferences. As discussed above, the
requirements set out in section 25 relating to the validity and applicability of an
advance decision limit the circumstances in which an advance decision will be
upheld. 148 If this is the case where there is a specific legislative endorsement of
advance decision-making, it may reasonably be expected that there will be an even
stronger endorsement of the present preferences and/or interests of the person
lacking capacity over past wishes in the context of section 4(6). For the reasons
discussed above, there are good reasons for decision-makers to favour a patient’s
present preferences/interests over past wishes, especially if there is not a clear
indication of what these past wishes are.
This does not mean, however, that this aspect of section 4 (6) is meaningless. The
MCA has an ambit beyond situations of conflict. In most situations, there will not be
a direct conflict between a patient’s past wishes and her current preferences or
interests. In these situations, section 4 (6) requires decision-makers to take account
of the past wishes of the person lacking capacity and to create a space within which
a person’s past wishes can still influence decisions notwithstanding the person’s
Best interests is inherently an elusive and, in some ways, unsatisfactory concept. As
traditionally understood at common law, the standard was based on the premise of
an objective assessment of the interests of the person lacking capacity. It assumed
an omniscient decision-maker operating against a backdrop of undisputed (albeit
unspoken) values against which the best interests of the person lacking capacity
could be measured. There were fundamental difficulties with this assumption. The
decision-maker is not omniscient but rather she inevitably lacks a fundamental
piece of knowledge, i.e. what it feels like to be the person for whom the decision is
146 Ibid., p. 56.
147 As noted in text to n. 93 supra, the substituted judgment standard as operated in the United States
clearly accords theoretical precedence to past preferences over current interests.
148 See text following n. 122 supra.
being made. The MCA concedes the fallibility of decision-makers and, by including
the person lacking capacity in the decision-making process, it approaches the
decision-making task with a degree of “epistemological humility”.149 For the reasons
set out earlier, this is a worthy approach.
However, because the MCA keeps faith with best interests standard, there will be
difficulties in giving effect to the participative framework set out in section 4. The
MCA adds a new factor to the best interests “balance sheet.” This factor is the
preference (past and present) of the person involved and the beliefs and values
which would be likely to influence the person if she had capacity. In so doing, the
MCA introduces a subjective element into the best interests standard, thereby
fundamentally challenging the objective nature of the standard. This creates a
conceptual dilemma in cases where there is a conflict either between the current
preferences of the person lacking capacity and her (objectively assessed) best
interests or between her past wishes and her current preferences and/or interests.
This article has argued that, where there is a conflict between the subjective
preferences of the person lacking capacity and the objective best interests standard,
the MCA requires that efforts be made to find a solution that recognises the
preference of the person to whom the decision relates. The imperative in this
regard increases where the evidence regarding best interest is “finely balanced,”
where the person’s capacity falls towards the upper end of the (in)capacity
continuum, and where the person actively resists the proposed treatment. It has
also been argued that, where there is a conflict between a person’s past wishes and
her current preferences and/or interests, current preferences and/or interests
should prevail. However, this does not mean that the MCA’s requirement to allow a
role for prior autonomy can be disregarded.
Ultimately, the MCA represents an inevitable compromise between objective and
subjective approaches to decision-making for people lacking capacity. There are
good reasons why this is an appropriate approach to decision-making in this
context. However, it does require decision-makers to negotiate new ways of
working with the best interests standard to ensure that the participative framework
contained in the MCA is allowed to operate in a meaningful way and that it does not
become simply a rhetorical nicety.
149 K. Atkins “Autonomy and the Subjective Character of Experience” (2000) 17 Journal of Applied
Philosophy 71, 75.