The medicalising the best interests test retrieved from Bolam.[2]

The wishes, feelings, beliefs, and values of adults who lack capacity
has an ethical need to be protected. Generally, these conditions/values/needs/desires
fall under the larger scope of autonomy; that is, simply speaking, the right for
an individual to make their own decisions. Legal issues surrounding incapacity
are mainly dealt with through the legislation of the Mental Capacity Act 2005
(“MCA”), however, the common law laid down the foundations and continues to
deal with issues arising regarding capacity in medical law, mainly through the
development of the best interests test. Whilst medical law aims to protect and
respect patient autonomy, through the implementation
of the MCA, including providing a clear tests for capacity, best interests and
advance decisions this is flawed, with the medical culture paternalism
risking the protection and respect of a patient’s wishes, feelings, beliefs and
values threatening patient autonomy.  

 

Common
Law on Capacity/The Development of the Best Interest test

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The test for mental capacity stems from the common law, specifically in
the leading case of Re F (Mental Patient:
Sterilisation)1 where
the House of Lords granted a declaration for a mentally handicapped patient to
be sterilised on the grounds of best interest. This was granted at a time of
judicial deference for medical opinion, with the case medicalising the best
interests test retrieved from Bolam.2 Thus the
best interest test was concerned more with a patient’s best medical interest or
with the best medical outcome rather than that of their own wishes, feelings,
beliefs and values. Therefore the view of the doctor would be deemed superior
to decide on a patient’s medical interests, giving paternalism a stronghold in
the decision making process. This application of the best interest test was
further confirmed in Re MB,3 where
the patient’s needle phobia was overridden to perform a caesarean section, and Airedale NHS Trust V Bland,4 where
the medical treatment was deemed to be ineffective, therefore it was no longer
in the patient’s best interests to receive the life-support treatment.

 

The approach of the best interest test expanded in Re Y (Mental Patient: Bone Marrow),5 where
the courts approved medical treatment that would not be medically beneficial to
the patient, but rather of medical benefit to the patient’s sibling, and thus
satisfy the patient’s familial interests. Furthermore, in Re A,6
Lord Thorpe, drawing on a Law Commission report in
1995 – REFERENCE?, suggests ‘the first instance judge with the
responsibility to make an evaluation of the best interests of a claimant
lacking capacity should draw up a balance sheet.’7 Thus suggesting
that judges should weigh up the risks and benefits of treatment to then come to
a reasonable conclusion of best interest. Mary Donnelly recognises Lord
Thorpe’s approach as ‘a more systematic approach’,8
signifying the common law development of the best interest test in trying to
further protect and respect the wishes, feelings, beliefs and values of adults
who lack capacity.

 

Regardless of this shift, Donnelly goes on to comment that in the
limited cases decided before the implementation of the MCA ‘where courts have referred
to the views of the person lacking capacity in assessing best interests, these
views appear to have had little impact on the decision reached.’9 Citing Re X10
and NHS Trust v T11,
Donnelly points out where the courts have referred to the views and wishes of patients,
but have subsequently gone on to act against these wishes, with the court
claiming that it is ultimately acting in the best interest of the patients, but
not actually respecting the patients’ wishes, feelings, beliefs and values. Therefore,
whilst the development of the best interest test can be said to have achieved a
more systematic approach, acknowledgement of the patients’ desires and views does
not amount to allowing adults lacking capacity autonomy over their own medical
decisions, leaving the MCA to further address these issues and attempt to
disassociate medical law from dominance of paternalism.

 

 

–         
Mirrors development in medical negligence away
from paternalistic approach from bolam, to motgomery – putting patients at the
heart of decision making.

 

Definition
of Incapacity/ The MCA

 

Before the MCA came into force in 2007,
the legal definition of incapacity was ambiguous. The implementation of the MCA
allowed for a clearer definition of capacity and, alongside the MCA Code of
Practice, outlined the test for capacity. Section 1 sets out the statutory
principles, notably that of the requirement of decisions to be made for those
without capacity in the best interests of that person12 and the
need for decisions to made ‘in a way that is less restrictive of the person’s
rights and freedom’.13 This
clearly represents a strong inclination towards patient autonomy, thus
respecting wishes, feelings, beliefs and values; however, it is less clear
whether the principles of the statute are enforced in reality.

 

The MCA sets out a two-stage to establish lack of capacity under section
2. In the first stage, the person in question must be diagnosed as suffering
from ‘an impairment of, or a disturbance in the functioning of, the mind or
brain’,14 that
can be either ‘permanent or temporary’.15 The
Mental Capacity Act Code of Practice goes on to elaborate what may fall under
the scope of a mental impairment or disturbance that satisfies section 2 of the
MCA. The second stage of the test to establish capacity regarding the patient’s
ability to make decisions.16 This is
essentially an adaptation of Thorpe’s judgment in Re C (Adult: Refusal of Treatment)17, where
he sets out a three-stage test, concluding that if a patient has the ability to
take in and retain information, believe it and weigh up the information given
to him, he is assumed to have capacity.18

 

This creates a decision-specific test for capacity, enhancing patient
autonomy to allow individuals to make their own decision only when such a situation
arises. However, this requires the need for an individual’s capacity to be
assessed, placing considerable reliance on the medical professional with the
duty of making the assessment. Section 5 of the MCA sets out that a doctor
would need to take ‘reasonable steps’19 to
establish lack of capacity, have a ‘reasonable belief’20 that
there is lack of capacity, and also ensure that the treatment will be in the
patients ‘best interests’.21 Whilst
this section provides vague guidelines as to how assessors perform a capacity
assessment, there is no formal mechanism provided in the MCA to allow patients
to hold assessors to account for malpractice. Donnelly argues that this offers
more protection to medical professionals than it does to patients who run the
risk of being inaccurately assessed with limited access to reparation, claiming
‘the MCA tells assessors what to do but is much more reticent in actually
ensuring that they do this.’22
Therefore, too much weight is given to the decisions of medical professionals,
leaving adults with borderline capacity vulnerable to exploitation and a lack
of protection of their autonomy rights.

 

Section 4 of the MCA focuses specifically on relevant factors to be
considered for the best interests test, but it is by no means an exhaustive
checklist, with the Code of Practice elaborating that section 4 ‘is only the
starting point’.23
Thus, ‘wishes and feelings’24 and
‘beliefs and values’25 are
enshrined in the statute, suggesting a portrayal of respect for the views of
adults who lack capacity, but only when it is ‘reasonably ascertainable’26  for an assessor to discover such views.
Donnelly is sceptical of this, claiming that ‘it cannot be enough for a
decision-maker simply to acknowledge the views of the person lacking capacity
before reaching a decision which takes no account of these views.’27 Conversely,
Donnelly may be more favourable to judgment laid down in the recent case of Aintree.28
Baroness Hale expresses the importance of subjectively judging best interests,
claiming ‘the purpose of the best interests test is to consider matters from
the patient’s point of view. … his beliefs and values or the things which
were important to him … should be taken into account’.29 Whilst
the judgment of the Supreme Court in Aintree
was praised, with Raanan Gillon calling for the MCA to be revised and
interpreted in light of the judgment,30 Laura
Hoyano also recognises the difficulty the Supreme Court faced to ‘interpret the
MCA according to pre-Act common law principles.’31 This
suggests that whilst the judiciary has further developed the best interests
test through common law, the court has difficulty in interpreting the MCA, thus
leading to a number of post legislative scrutiny of the MCA.

 

Post
Legislative Scrutiny of the MCA (Jackson pg 286-288)

The MCA can be said to have a strikingly facilitative approach to
patient autonomy compared to past legislation, such as the Mental Capacity Act
1983, portraying growing protection and respect of wishes, feelings, beliefs
and values. This is not only due to a more patient-friendly approach, but also
through measures such as the introduction of statutory rights to make advanced
decisions (‘AD’).32 Whilst
the purpose of ADs allow adults with capacity to protect their wishes and right
to make decisions for when/if they were ever to lack capacity in the near
future, this may not offer as much protection as appears, with the Code of Practice
highlighting the ability of healthcare professionals to cast doubt on an AD if
‘they are aware of reasonable grounds to doubt the person had the capacity to
make the advanced decision at the time they made it.’33 This
can be further observed in A Local
Authority v E34 where
Peter Jackson J disregards E’s AD to refuse force-feeding as her history of
anorexia refuted her presumption of capacity. Rob Heywood further criticises
the MCA’s approach to ADs due to the lack of requirement of a capacity
assessment prior to the AD being made. Heywood argues that this leaves ADs
‘vulnerable to attack’,35 and
thus leaving the wishes, feelings, beliefs and values of adults lacking
capacity unprotected to medical and judiciary scrutiny or rebuttal. This
further portrays the MCA’s attempt and failure of respecting patient autonomy,
by introducing ADs as a statutory right, but not reinforcing the source of
protection, exposing vulnerability in the legislation of capacity.

 

The House of Lords Select Committee on the MCA describe the Act as being
‘visionary’36
through placing ‘the individual at the heart of decision-making’.37
However, through their findings, the Committee claim that the implementation of
the Act ‘has not met the expectations that it rightly raised’38 through
reasons such as suffering from ‘a lack of awareness and lack of understanding’39 and due
to the prevailing culture of paternalism preventing the Act from being embedded
into everyday procedures.40 The
Committee also criticises the approach to best interests decision making,
claiming it is not performed in the manner the Act intended and that ‘the
wishes, thoughts and feelings of P are not routinely prioritised’,41
claiming that ‘clinical judgements or resource-led decision-making
predominate.’42
This view is further supported by Neil Allen, who claims ‘The MCA aims to
strike a difficult balance between enhancing autonomy and protection from harm’43
agreeing with the Committee that ‘Cultures of paternalism in health and risk
aversion in social care prevail and its empowering ethos has not been delivered.’44 The
Committee’s principle recommendation to address the failure of embedding the
MCA into every day practice is the need for a single independent body to
oversee the implementation of the Act. The Government responded, claiming it
will ‘take a comprehensive approach to promoting implementation’45 and
also went on to establish the National Mental Capacity Forum in 2015 to aid
this implementation.

 

Conclusion

Through both the development of the best interest test and the implementation
of the MCA, English medical law has taken steps to protect and respect the
wishes, feelings, beliefs and values of adults who lack capacity, with the MCA
being in particular high regard as a necessary piece of legislation. There has
been a systemised approach to diagnosing capacity, developed through common law
and embedded in the MCA, as well as statutory guidelines to protect the best
interest test and the statutory measure of ADs. However, despite these
visionary developments, there remains major flaws in implementing such
expectations the Act sets out. So long as a paternalist culture prevails in
medical law, English medical law will come across great difficulty in its quest
to protect and respect the wishes, feelings, beliefs, and values of adults who
lack capacity.

1
Re F v West Berkshire Health Authority (Mental
Patient: Sterilisation) 1990 2 AC 1

2
Bolam v Friern Hospital Management Committee
1957 1 WLR 582

3
Re MB (An Adult: Medical Treatment) 1997
38 BMLR 175 CA

4
1993 AC 789

5
1997 2 WLR 556

6
Re A (Male Sterilisation) 2000 1
FLR 549

7
ibid 560

8
Mary Donnelly, ‘Best interests, Patient
participation and the Mental Capacity Act 2005’ (2009) Medical Law Review
17(1) 4

9
ibid 5

10
Re X (Adult Sterilisation) 1998 2
FLR 1124

11
2004 EWHC 1279 (Fam)

12
Mental Capacity Act 2005 (MCA), s1(5)

13
Ibid. s1(6)

14
Ibid. s2(1)

15
Ibid. s2(2)

16
Ibid. s3

17
1994 1 WLR 290

18
Ibid 292

19
MCA (n 12) s5(a)

20
ibid s5(b)(i)

21Ibid
s5(b)(ii)

22
Mary Donnelly, ‘Capacity Assessment under
the Mental Capacity Act 2005: Delivering on the Functional Approach?’
(2009) 29 Legal Studies 482

23
Mental Capacity Act 2005 Code of Practice, Para 5.6

24
MCA (n 12) s6(a)

25
ibid s6(b)

26
ibid s6

27
Donnelly (n 8) 20

28
Aintree University Hospitals Foundation
Trust v James 2013 UKSC 67

29
ibid 45

30
Raanan Gillon, ‘Why I wrote my advance
decision to refuse life-prolonging treatment: and why the law on sanctity of
life remains problematic’ (2016) Journal of Medical Ethics, page 7

31
Laura Hoyano, ‘Withholding potentially
life-sustaining treatment and the Mental Capacity Act 2005’ (2014)  Journal of Social Welfare and Family Law,
36:2, page 216

32
MCA (n 12), s24-26

33
MCA Code of Practice (n 23) para 9.8

34
2012 EWHC 1639 (fam)

35
Rob Heywood, ‘Revisiting Advance Decision
Making Under the Mental Capacity Act 2005: A Tale of Mixed Messages’ (2015)
23 Medical Law Review 81-102  93

36
House of Lords Select Committee on the Mental Capacity Act 2005, Report of
Session 2013-2014, Mental Capacity Act 2005:Post-Legislative Scrutiny

37
ibid

38
ibid

39
ibid

40
ibid

41
ibid

42
ibid

43
Neil Allen, quoted in Judith Laing & Jean McHale, ‘Principles of medical law’ (OUP, 4th edition, 2017) 561-562

44
ibid

45
HM Government, Valuing Every Voice,
Respecting Every Right: Making the Case for the Mental Capacity Act (TSO:
London, 2014) Para 2.5

x

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