BEST INTERESTS, PATIENT PARTICIPATION AND THE MENTAL CAPACITY ACT 2005

Abstract

This is a pre-copy-editing, author-produced PDF of an article accepted for publication in Medical Law Review following peer review. This article analyses the best interests standard as applied in the context of healthcare decisions in light of the participative elements introduced by the Mental Capacity Act (EW). 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 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. The article argues that 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.