Module 3: Best Interests

3.1 What is ‘Best Interests’?

The discussion so far has focused on what you would want for yourself – now we turn to looking at what the law says about making decisions for other people.

A key principle here is that of “Best Interests” – if you feel confident you already know all about “Best Interests” decision-making then skip straight to each of the 4 quizzes that follow each audio clip and see if you “pass”. If not, then listen to the short clips and then answer the quiz questions.  

Click on the arrow in the presentation reveal the audio bar. Click on the arrow in the audio bar to play the audio clip.

Now check your understanding by answering the four questions below.

The following discussion is all based on The Mental Capacity Act 2005 which applies to England and Wales. There are lots of overlaps across the UK and among close geographical neighbours about the way decisions should be taken for those who lack capacity to make the relevant decision themselves. Most legislation claims to emphasise person-centred decision-making.

However, there are also some differences so it is important to look at the detail of legislation in the jurisdiction in which you work.

Capacity

Now listen to the clip below then answer the following quiz.  Click on the arrow to play the audio.

Now answer the five questions below.

Now listen to this final clip of the section by clicking on the arrow below then answer the quiz about best interests. Click on the arrow in the presentation reveal the audio bar. Click on the arrow in the audio bar to play the 3-minute clip.

Now try answering the couple of questions below.

Best interests: One criticism of the ‘best interests’ approach is that it is discriminatory and paternalistic and may be incompatible with the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Best Interest is explicitly rejected in some legislation – such as Ireland’s Assisted Decision-Making (Capacity) Act 2015. The move there is towards simply following the expressed will and preferences of the patient.

In case law in England and Wales there is, however, a very great emphasis on the person’s wishes when applying the Mental Capacity Act 2005. In Aintree University Hospitals NHS Foundation Trust v James & Ors [2014]  for example Baroness Hale noted that section 4 of the 2005 Act does not propose a totally objective best interests decision-making process but contains a “strong element of substituted judgment” which accepts that the  person’s preferences are an important component in deciding on his best interests. Baroness Hale highlighted that:

“… decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.”