1. Various problems have been identified with placing too much emphasis on objective
considerations in best interests assessments. Arguably, now, the pendulum has
swung too far in the opposite direction and best interests has become little more than
a pseudonym for a substituted judgement approach.
Critically analyse the above statement.
Concerns the domain of mental capacity law. Make sure you alert this to the examiner.
Two sources of law that need to be considered:
1. Mental capacity act 2005 - primary source
2. Common law - MCA draws influence from this
The common law position is not completely redundant. Identify that english law was slow to
get going and how it approached and considered those individuals who lack mental capacity
to make their own choice. In the past, patients suffering from mental incapacity, no one could
consent on their behalf once they reached the age of maturity (18). And they did not have
the ability to make a decision for themselves. This left doctors in a difficult position, what
were they to do? Were these patients ignored? Marginalised? It mean they did get treated,
but little thought was given to the legal justification for providing that treatment, the interests
of the incapacitated patient as an individual who may, to some extent, express their wishes
and beliefs, even if they do not retain legal capacity. And also little thought was given to the
legal position of doctors. English law was slow in regard to this particular issue.
Talk about the fact english law carries a presumption of capacity, the golden thread that runs
through english law. That is the starting point. If a patient has capacity, their decision is
sacrosanct and it has to be complied with and respected. Only if a patient lacks capacity that
we have to consider how a decision will be made for them. Patient lacks capacity if they are
unable to make a decision. Legal test for ascertaining whether they are unable to make a
decision is found under s3(1) MCA 2005 which was largely mirrored on the common law
case of Re C.
When applied, if it is decided that a patient lacks capacity based on that approach, then
move to next prong. How do we make a decision for this individual patient? Legal
mechanism is best interests. Allows a decision to be made for a patient. Key issue is how
english law has developed its understanding of best interests. What was its position
historically? And what has been the direction of travel in contemporary times? Have attitudes
changed? Is this a good thing?
Talk about issue of best interest and how it was conceived under English law. Case of F v
West Berkshire, sterilisation of woman suffering from mental incapacity and worried that she
may fall pregnant as a result of entering a relationship with another patient. Proposed she
should undergo sterilisation. HoL were asked for the first time how we justify treating
incapacitated patients. Case was in 1990, demonstrates slow to get going, surely it would
have confronted this question earlier. HoL was clear, it suggested that this procedure could
go ahead, authorised, and did so on the basis of it being in the patient’s best interests. How
did they define best interest? What was their understanding of it?
They decided to borrow the Bolam test and drop it into this area of mental capacity law. Best
interests defined by a responsible body of medical opinion deem a particular procedure to be
in a patient’s best interest. This was the initial approach adopted. Left with a medicalised
model of best interest. Critical observations can be made from this. It was hugely
paternalistic and gave a lot of power to the medical professionals (similar to the problems in
,Bolam associated with negligence). It is grounded in the idea the doctor knows best and they
can make a decision for patient without any consultation or notion about what that individual
may feel about what is being proposed. Potentially, opens up abuse, hoped there was
control exerted in terms of some sort of declaration each time an invasive procedure was
proposed to act as a safeguard, but house of lords said no. it might be recommended, but it
was not an absolute requirement. It is a very narrow conception on best interests, focuses
exclusively on objective medical evidence and objective medicalised model of best interests.
Little or no recognition that there might be a patient who may not necessarily meet the
standard of retaining capacity, but still may have valid views and wishes and be able to
communicate those. Surely this should form part of decision making? Equally views
expressed by relatives/carers should be in mind. Captures some of the problems. This
attitude was prevalent in english law for a considerable amount of time. F v West Berkshire
was a pivotal case and influenced the direction of english law.
Wasn’t until MCA 2005 began to change a little. Certain judges under common law did
recognise bolam being applied to best interest might not be wholly suitable, and needs to
take on different factors and have emotional and social considerations. Judges were
prepared a broader approach may be more suitable in some instances. But were not
crystalised until MCA. the act brought many changes for the law pertaining to mental
capacity.
Best interests - idea was that it would develop the law, recognising it had a more expansive
and broader meaning. Medical perspective only wasn’t going to be sufficient, it was trying to
change direction. It provided a broader range of factors that a decision maker had to
consider. S4 MCA broadens list of factors that need to form part of best interest assessment.
It was a key change. Statutory recognition.
Arguably, within s4, s4(6) and s4(7)
s4(6) - past/present wishes and values and beliefs that a patient had pertaining to
procedure. Clearly is about recognising the patient and injects a degree of subjectivity and
subjective considerations into the wider best interest assessment
s4(7) - views by loved ones/carers ought to have a role in determining where a patients best
interests may lie. Now need to be brought in to best interest decision.
Wider and welcomed approach. Step in right direction.
Initially appears to have improved things, there are still dangers. There has to be a balancing
act undertaken by decision maker, problem is that this is imperfect, comparing a range of
factors that are not necessarily commensurate, and there is no hierarchy or preference given
to certain factors over others. It is largely at the discretion of the decision maker as to where
they decide to place emphasis. This means the law lacks a degree of predictability and
inconsistent in some instances, and judgements cannot be used as precedent, as it is based
on facts of individual case. Some problems continue to exist. Up to decision maker.
Certainly, the initial signs was that decision makers were reluctant and resistant to give a
considerable weight to these subjective factors, did not want to move away from objective
best interests. Gradually, we have started to see pattern where this is changing.
What was the trigger? Aintree - emphasis does need to be placed on the subjective views of
patient, and wherever possible, best interest assessment has to be decided through the lens
of the patient. Have then seen a move towards a greater emphasis on subjectivity. Bring
, cases to illustrate this - Wye Valley case - demonstrates the judge in judgement was looking
at decision from the angle of the patient when deciding a best interest decision.
Good thing? But also needs to be weighed up against dangers. Placing emphasis on
subjectivity is an autonomy enhancing approach. But not always the case. Because it is not
the patient’s outright decision, it is the decision maker’s interpretation of what the patient
would wish in the issue. Equally, substituted judgement - some cases appear to endorse
this, but not explicitly. Put yourself in shoes of incapacitated patient. This is difficult to justify
this approach, cannot do this if the patient lacks capacity if they’ve never had it.
If it is too far towards subjectivity, important objective considerations that should form part of
a best interest decision will end up withering. There is still a dimension that needs to be
considered. Need an appropriate balance. Example, too subjective means too much
emphasis on empowerment, which although should be considered, it ignores and belittles
the aim of protection of the patient. Empowerment v protection. Beverly cluff, mary donology,
etc can be brought into the answer. Also consider whether the model that english law
promotes is sensible. The MCA is a substitute decision making model, but UNCRPD
suggests a supportive decision making model, law’s aim should be to allow patient to make
the decision for themselves wherever possible. Would this work in practice? Is it desirable?
English law has been recently reformed MCA 2019, some suggestion that within changes,
law ought to explicitly state that definite emphasis should be placed on the subjective
considerations under s4(6). English law resisted that change.
2. Despite laudable intentions, the Human Fertilisation and Embryology Act 2008 has
failed to rectify some key legal problems in respect of the storage and use of
gametes and embryos. Critically analyse the above statement.
Issues that need to be thought about… begin by suggesting the HFEA 1990 adopted a
stringent and restrictive approach to the type of consent required for the storage and use of
embryos/gametes. Basic legal position is that the consent that is required is written consent.
This is decreed by schedule 3 HFE 1990. Mention justifications for this approach, why they
adopted this. Reflects special status attributed to gametes and embryos. This material
contains DNA and potentially can be used in the future to create life. So this is why english
law assigns special status, suggest we need additional safeguards to ensure anyone making
a decision about their embryos, has given their explicit consent. Could question if written
consent actually achieves this?
English law, in maintaining this requirement, has been criticised, it is restrictive and brings a
number of problems. 2008 act ought to remedy these problems. Make the point that the
2008 act does not necessarily go far enough in the changes it has made to english law’s
position. Difficulties stemming from legal requirement:
Where there is no consent at all, patient may not be able to give required written consent,
classic example is Diane Blood. Stephen Blood went into a coma, they obtained a sperm
sample, but he could not give the necessary written consent because he was not in a
position to do so. Had sample, but did not know what the legal standpoint was, as this issue
had never been confronted before. Sample needed to be destroyed, couldn’t be stored and
used to treat diane, didnt have consent. Challenged decision via judicial review. CoA allowed
considerations in best interests assessments. Arguably, now, the pendulum has
swung too far in the opposite direction and best interests has become little more than
a pseudonym for a substituted judgement approach.
Critically analyse the above statement.
Concerns the domain of mental capacity law. Make sure you alert this to the examiner.
Two sources of law that need to be considered:
1. Mental capacity act 2005 - primary source
2. Common law - MCA draws influence from this
The common law position is not completely redundant. Identify that english law was slow to
get going and how it approached and considered those individuals who lack mental capacity
to make their own choice. In the past, patients suffering from mental incapacity, no one could
consent on their behalf once they reached the age of maturity (18). And they did not have
the ability to make a decision for themselves. This left doctors in a difficult position, what
were they to do? Were these patients ignored? Marginalised? It mean they did get treated,
but little thought was given to the legal justification for providing that treatment, the interests
of the incapacitated patient as an individual who may, to some extent, express their wishes
and beliefs, even if they do not retain legal capacity. And also little thought was given to the
legal position of doctors. English law was slow in regard to this particular issue.
Talk about the fact english law carries a presumption of capacity, the golden thread that runs
through english law. That is the starting point. If a patient has capacity, their decision is
sacrosanct and it has to be complied with and respected. Only if a patient lacks capacity that
we have to consider how a decision will be made for them. Patient lacks capacity if they are
unable to make a decision. Legal test for ascertaining whether they are unable to make a
decision is found under s3(1) MCA 2005 which was largely mirrored on the common law
case of Re C.
When applied, if it is decided that a patient lacks capacity based on that approach, then
move to next prong. How do we make a decision for this individual patient? Legal
mechanism is best interests. Allows a decision to be made for a patient. Key issue is how
english law has developed its understanding of best interests. What was its position
historically? And what has been the direction of travel in contemporary times? Have attitudes
changed? Is this a good thing?
Talk about issue of best interest and how it was conceived under English law. Case of F v
West Berkshire, sterilisation of woman suffering from mental incapacity and worried that she
may fall pregnant as a result of entering a relationship with another patient. Proposed she
should undergo sterilisation. HoL were asked for the first time how we justify treating
incapacitated patients. Case was in 1990, demonstrates slow to get going, surely it would
have confronted this question earlier. HoL was clear, it suggested that this procedure could
go ahead, authorised, and did so on the basis of it being in the patient’s best interests. How
did they define best interest? What was their understanding of it?
They decided to borrow the Bolam test and drop it into this area of mental capacity law. Best
interests defined by a responsible body of medical opinion deem a particular procedure to be
in a patient’s best interest. This was the initial approach adopted. Left with a medicalised
model of best interest. Critical observations can be made from this. It was hugely
paternalistic and gave a lot of power to the medical professionals (similar to the problems in
,Bolam associated with negligence). It is grounded in the idea the doctor knows best and they
can make a decision for patient without any consultation or notion about what that individual
may feel about what is being proposed. Potentially, opens up abuse, hoped there was
control exerted in terms of some sort of declaration each time an invasive procedure was
proposed to act as a safeguard, but house of lords said no. it might be recommended, but it
was not an absolute requirement. It is a very narrow conception on best interests, focuses
exclusively on objective medical evidence and objective medicalised model of best interests.
Little or no recognition that there might be a patient who may not necessarily meet the
standard of retaining capacity, but still may have valid views and wishes and be able to
communicate those. Surely this should form part of decision making? Equally views
expressed by relatives/carers should be in mind. Captures some of the problems. This
attitude was prevalent in english law for a considerable amount of time. F v West Berkshire
was a pivotal case and influenced the direction of english law.
Wasn’t until MCA 2005 began to change a little. Certain judges under common law did
recognise bolam being applied to best interest might not be wholly suitable, and needs to
take on different factors and have emotional and social considerations. Judges were
prepared a broader approach may be more suitable in some instances. But were not
crystalised until MCA. the act brought many changes for the law pertaining to mental
capacity.
Best interests - idea was that it would develop the law, recognising it had a more expansive
and broader meaning. Medical perspective only wasn’t going to be sufficient, it was trying to
change direction. It provided a broader range of factors that a decision maker had to
consider. S4 MCA broadens list of factors that need to form part of best interest assessment.
It was a key change. Statutory recognition.
Arguably, within s4, s4(6) and s4(7)
s4(6) - past/present wishes and values and beliefs that a patient had pertaining to
procedure. Clearly is about recognising the patient and injects a degree of subjectivity and
subjective considerations into the wider best interest assessment
s4(7) - views by loved ones/carers ought to have a role in determining where a patients best
interests may lie. Now need to be brought in to best interest decision.
Wider and welcomed approach. Step in right direction.
Initially appears to have improved things, there are still dangers. There has to be a balancing
act undertaken by decision maker, problem is that this is imperfect, comparing a range of
factors that are not necessarily commensurate, and there is no hierarchy or preference given
to certain factors over others. It is largely at the discretion of the decision maker as to where
they decide to place emphasis. This means the law lacks a degree of predictability and
inconsistent in some instances, and judgements cannot be used as precedent, as it is based
on facts of individual case. Some problems continue to exist. Up to decision maker.
Certainly, the initial signs was that decision makers were reluctant and resistant to give a
considerable weight to these subjective factors, did not want to move away from objective
best interests. Gradually, we have started to see pattern where this is changing.
What was the trigger? Aintree - emphasis does need to be placed on the subjective views of
patient, and wherever possible, best interest assessment has to be decided through the lens
of the patient. Have then seen a move towards a greater emphasis on subjectivity. Bring
, cases to illustrate this - Wye Valley case - demonstrates the judge in judgement was looking
at decision from the angle of the patient when deciding a best interest decision.
Good thing? But also needs to be weighed up against dangers. Placing emphasis on
subjectivity is an autonomy enhancing approach. But not always the case. Because it is not
the patient’s outright decision, it is the decision maker’s interpretation of what the patient
would wish in the issue. Equally, substituted judgement - some cases appear to endorse
this, but not explicitly. Put yourself in shoes of incapacitated patient. This is difficult to justify
this approach, cannot do this if the patient lacks capacity if they’ve never had it.
If it is too far towards subjectivity, important objective considerations that should form part of
a best interest decision will end up withering. There is still a dimension that needs to be
considered. Need an appropriate balance. Example, too subjective means too much
emphasis on empowerment, which although should be considered, it ignores and belittles
the aim of protection of the patient. Empowerment v protection. Beverly cluff, mary donology,
etc can be brought into the answer. Also consider whether the model that english law
promotes is sensible. The MCA is a substitute decision making model, but UNCRPD
suggests a supportive decision making model, law’s aim should be to allow patient to make
the decision for themselves wherever possible. Would this work in practice? Is it desirable?
English law has been recently reformed MCA 2019, some suggestion that within changes,
law ought to explicitly state that definite emphasis should be placed on the subjective
considerations under s4(6). English law resisted that change.
2. Despite laudable intentions, the Human Fertilisation and Embryology Act 2008 has
failed to rectify some key legal problems in respect of the storage and use of
gametes and embryos. Critically analyse the above statement.
Issues that need to be thought about… begin by suggesting the HFEA 1990 adopted a
stringent and restrictive approach to the type of consent required for the storage and use of
embryos/gametes. Basic legal position is that the consent that is required is written consent.
This is decreed by schedule 3 HFE 1990. Mention justifications for this approach, why they
adopted this. Reflects special status attributed to gametes and embryos. This material
contains DNA and potentially can be used in the future to create life. So this is why english
law assigns special status, suggest we need additional safeguards to ensure anyone making
a decision about their embryos, has given their explicit consent. Could question if written
consent actually achieves this?
English law, in maintaining this requirement, has been criticised, it is restrictive and brings a
number of problems. 2008 act ought to remedy these problems. Make the point that the
2008 act does not necessarily go far enough in the changes it has made to english law’s
position. Difficulties stemming from legal requirement:
Where there is no consent at all, patient may not be able to give required written consent,
classic example is Diane Blood. Stephen Blood went into a coma, they obtained a sperm
sample, but he could not give the necessary written consent because he was not in a
position to do so. Had sample, but did not know what the legal standpoint was, as this issue
had never been confronted before. Sample needed to be destroyed, couldn’t be stored and
used to treat diane, didnt have consent. Challenged decision via judicial review. CoA allowed
