The best interests test, as set out in the Mental Capacity Act 2005 (MCA), provides the legal framework for making healthcare decisions on behalf of adults who lack capacity. This essay examines the extent to which the test can be regarded as patient-centred and patient-empowering. It first outlines the statutory provisions, before considering elements that promote a patient perspective. The discussion then addresses limitations that constrain empowerment, drawing on case law and commentary. Finally, the essay considers whether reform is required, concluding that targeted adjustments would strengthen the patient focus without undermining the protective purpose of the test.
The Statutory Framework of the Best Interests Test
Section 1(5) of the MCA establishes that any act done or decision made on behalf of a person who lacks capacity must be done or made in that person’s best interests. Section 4 sets out the factors that must be considered when determining best interests. These include the person’s past and present wishes, feelings, beliefs and values, as well as the views of anyone named by the person or engaged in their care. Lady Hale’s statement in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 emphasises that the test is intended to adopt the viewpoint of the individual rather than an external or purely objective standard. The statutory checklist therefore represents a deliberate attempt to move away from a purely paternalistic model of decision-making.
Patient-Centred Features of the Test
Several aspects of section 4 demonstrate a patient-centred orientation. The requirement in section 4(6) to consider the individual’s wishes and beliefs means that decision-makers cannot simply impose their own view of welfare. In Aintree, Lady Hale clarified that the court must put itself in the patient’s position and consider what the patient would regard as beneficial. Subsequent cases, such as Briggs v Briggs [2016] EWCOP 53, have given considerable weight to an earlier statement of wishes when determining that continued life-sustaining treatment was not in the patient’s best interests. The test therefore incorporates subjective elements that differentiate it from a purely medical or objective assessment of benefit. This approach recognises that patients may value quality of life or personal dignity differently from clinicians, thereby enhancing the patient-centred character of the decision.
Limitations on Patient Empowerment
Despite these features, the best interests test remains limited in its capacity to empower patients. The final decision rests with a third party—whether a deputy, court or healthcare professional—who retains discretion to override expressed wishes if they are considered contrary to overall welfare. In R (Burke) v General Medical Council [2005] EWCA Civ 1003 the court emphasised that best interests is an objective test, even though subjective factors must be taken into account. Moreover, the absence of a formal supported decision-making regime means that many patients who could participate with appropriate assistance are nevertheless treated as lacking capacity. This structural feature reduces the extent to which the test actively empowers individuals to shape their own care. Furthermore, empirical evidence suggests that best interests meetings often prioritise clinical opinion over detailed exploration of the patient’s biography and values, limiting the practical realisation of the patient-centred ideal.
Arguments for and Against Reform
Calls for reform have focused on strengthening the voice of the individual. Proposals include placing greater formal weight on advance statements and introducing a presumption that a person’s expressed wishes should prevail unless clear contrary evidence exists. Such changes would align more closely with the spirit of Article 12 of the United Nations Convention on the Rights of Persons with Disabilities, which emphasises supported rather than substituted decision-making. However, reform must also preserve the protective function of the test for those whose wishes are unknowable or manifestly harmful. A modest adjustment—such as requiring decision-makers to demonstrate that they have given “particular regard” to ascertainable wishes—could enhance patient empowerment while retaining necessary safeguards. Wholesale replacement of best interests by a pure substituted judgment standard would, conversely, risk undermining protection for vulnerable individuals whose prior wishes are ambiguous.
Conclusion
The best interests test incorporates significant patient-centred elements, particularly through the statutory requirement to consider the individual’s own values and perspective. Nevertheless, the retention of third-party discretion and the absence of robust supported decision-making mechanisms limit its empowering effect. Targeted reform that strengthens the presumption in favour of respecting ascertained wishes would improve patient empowerment without sacrificing essential protection. Such refinement would better realise Lady Hale’s aspiration that decisions be made from the patient’s point of view.
References
- Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67.
- Briggs v Briggs [2016] EWCOP 53.
- Donnelly, M. (2010) Healthcare Decision-Making and the Law: Autonomy, Capacity and the Limits of Liberalism. Cambridge: Cambridge University Press.
- House of Lords Select Committee on the Mental Capacity Act 2005 (2014) Mental Capacity Act 2005: Post-Legislative Scrutiny. HL Paper 139. London: The Stationery Office.
- Mental Capacity Act 2005, c.9. Available at: https://www.legislation.gov.uk/ukpga/2005/9/contents (Accessed: 12 October 2024).
- R (Burke) v General Medical Council [2005] EWCA Civ 1003.
